Professional Documents
Culture Documents
TOM DOUGHERTY
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3
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Acknowledgements
When writing this book, I have been fortunate to benefit from many people.
I am particularly grateful to Johann Frick, Hugh Lazenby, Hallie Liberto,
and Victor Tadros, from whom I have learned an enormous amount about
the issues covered by this book. Some of my intellectual debts are so
important that I would like to highlight them at the outset. Johann has
made me appreciate how much philosophical mileage can be got from the
idea of interpersonal justification. Hugh has helped me realize the import-
ance of a consent-receiver’s epistemic access to the scope of consent. Hallie
has persuaded me that consent can be given by directives like requests, and
I have been significantly influenced by Victor’s challenges to the view that
uptake is not necessary for consent. In addition, Hallie and Victor came up
with cases that steered me towards the conclusion that someone can consent
to an action without intending to permit this action. These are only some of
the ways that they have shaped my views, and I am also grateful to each of
them for their support and friendship over the years.
I have also benefited a great deal from conversations with many other
philosophers and from their feedback on my work. The research for this
book has taken many years, and I have not done a great job of keeping
records of all of the people who have helped me along the way. Here is a no
doubt incomplete list of the people whom I would like to thank for conver-
sations and comments: Larry Alexander, Scott Anderson, David Archard,
Ralf Bader, Elizabeth Barnes, Christian Barry, Renée Jorgensen Bolinger,
David Boonin, Angela Breitenbach, Danielle Bromwich, Eamonn Callan,
Karam Chadha, Clare Chambers, Steve Clarke, Garrett Cullity, Robin
Dembroff, Luara Ferracioli, Kim Ferzan, John Filling, Helen Frowe,
Eduardo García-Ramirez, Eleanor Gordon-Smith, Dan Greco, Alex
Grzankowski, Simone Gubler, Dan Halliday, Sally Haslanger, Richard
Healey, Sam Hesni, Richard Holton, Joe Horton, Adam Hosein, Zöe
Johnson King, Karen Jones, Shelly Kagan, Rachel Keith, John Kleinig,
Quill Kukla, Rae Langton, Seth Lazar, Jed Lewinsohn, Christian List, Neil
Manson, Jeff McMahan, Kris McDaniel, Tristram McPherson, Colin
Marshall, Joseph Millum, Andreas Muller, Véronique Munoz-Dardé,
Mark Murphy, Serena Olsaretti, Mike Otsuka, David Owens, Tom Parr,
viii
I am also very grateful to Peter Momtchiloff for his advice and support in
his capacity as Senior Commissioning Editor for Philosophy at Oxford
University Press.
Most of all, I am indebted to the support of my friends and family.
Introduction
Like many philosophers, I have a talent for abstraction. That might sound
like boasting, but really ‘abstraction’ is just a polite word for not paying
attention to what is going on around you. Because this comes easily to me,
life is often full of surprises, like finding out after a medical procedure what it
involved. Apparently, a biopsy involves cutting out bits of one’s body. I had
thought that a tube was being put down my throat to take photos. It was a
good hospital, so the medical staff had asked whether I knew what a biopsy
was. Because I mistakenly half-thought that I did, I signed the consent form
without realizing what I was getting myself into. When I later found out
what had happened, I began to wonder: had I really consented to a biopsy?
By signing the form, I had certainly consented to something. But was the
actual medical procedure something that I had authorized? Or, as I like to
put that question, did the biopsy fall within the scope of my consent?
My answer is that because I signed a consent form for a biopsy, the biopsy
did fall within the scope of my consent. I secretly hope that this might strike
you as a piece of common sense, because this will make my view an easier
sell. But if it is common sense, then it is common sense that is denied by a
common view of consent. According to this view, consent is a normative
power in the following sense: by giving consent, we grant someone a
permission to perform an action at least in part by intending to permit
them to perform this action.¹ Some say that we give people these permis-
sions simply by willing that they have these permissions. Others say that we
also need to communicate that we are giving them these permissions. But
either way, the thought is that we consent to someone performing an action
partly by intending to permit them to perform that very action. While this
¹ Here and throughout this book, whenever gender is irrelevant, I use ‘they’ as a singular
gender-neutral pronoun both for characters in hypothetical examples and for scholars. I do so
largely for the reasons given in Dembroff & Wodak (2018), and also to avoid making assump-
tions about scholars’ genders.
The Scope of Consent. Tom Dougherty, Oxford University Press (2021). © Tom Dougherty.
DOI: 10.1093/oso/9780192894793.003.0001
2
normative power view is attractive, there has not been sufficient appreci-
ation of one of its central problems, which is that it has implausible
implications for the scope of someone’s consent. If consenting to an action
requires intending to permit someone to perform that action, then one
cannot consent to a biopsy while failing to form an intention to permit a
biopsy. Since I achieved that feat when I bumbled through the hospital, the
normative power view is false.
In its place, I will propose an alternative view, which is centred around the
following three key ideas. First, consent involves deliberately engaging in
behaviour that expresses one’s will. Second, the scope of the consent partly
depends on the right way to interpret this expressive behaviour in light of
the available evidence. Third, the scope also depends on how this behaviour
should be interpreted in light of any extra evidence that the consent-receiver
has a duty to acquire. Let me briefly sketch each idea before showing how
these ideas apply to the case of the biopsy.
First idea: consent is an expression of the will. The first idea is a view of
what consent is. To give consent, it is not enough for us to have certain
thoughts. In addition, we need to engage in outward behaviour. Specifically,
we need to deliberately act in ways that express our wills concerning how
another person acts. There are two ways to do this. First, we can grant them
permission. Second, we can direct how they act. An example of a direction
would be a request for another person to perform an action.
Second idea: the scope of consent depends on the consent-receiver’s
evidence. Although consent requires that we deliberately engage in a type of
behaviour that expresses our wills, our intentions do not determine which
token actions are authorized by our consent. Instead, the range of authorized
actions is fixed by the correct way for our consent-giving behaviour to be
interpreted. Partly, this interpretation depends on the available evidence
concerning what we intended to permit when we engage in this behaviour.
But not any evidence will do. This evidence must meet two conditions. First,
we must reasonably accept that this evidence bears on how we should be
interpreted. Second, recipients of our consent must reasonably accept that
this evidence bears on how we should be interpreted. As a term of art, I call
evidence that meets both conditions, ‘reliable evidence’. The scope of our
consent is fixed in part by the reliable evidence that is actually available.
Third idea: the scope also depends on any evidence that the consent-
receiver has a duty to acquire. Sometimes, others have duties to acquire
additional reliable evidence about which actions we mean to cover. Let us
say that the ‘enhanced reliable evidence’ is the sum of this extra evidence
3
and the available reliable evidence. The scope of our consent is also fixed in
part by the enhanced reliable evidence about what we intend to cover with
our consent.
Together, these ideas imply that I did consent to the biopsy. By signing a
consent form, I was deliberately engaging in permission-giving behaviour.
Indeed, I was also deliberately directing the medical staff ’s behaviour with a
request. Therefore, twice over I was deliberately expressing my will in a way
that constituted giving consent. To interpret this expression of my will, the
medical staff had the following evidence: I had signed a form that clearly
stated that the procedure was a biopsy, and I had indicated that I knew what
a biopsy was. I had to reasonably accept that my consent should be inter-
preted in light of this evidence. Admittedly, that evidence was misleading,
given that I did not know what a biopsy was and hence did not intend to
authorize a biopsy. But all the same, I had given the medical staff compelling
evidence that I intended to authorize a biopsy when I signed the consent
form. Moreover, the medical staff had no duty to acquire additional evi-
dence concerning what I intended to authorize. By getting my response that
I knew what a biopsy was, the staff had done all that was required of them.
Therefore, the available reliable evidence was the same as the enhanced
reliable evidence. Since this evidence sufficiently supported the interpret-
ation that I intended to authorize a biopsy by signing the consent form, the
biopsy fell within the scope of my consent.
I arrived at that view as the result of a project that began with an interest in
lying to get laid. Let me illustrate this with a true story.
Even though April Fool’s Day is an inauspicious day for a wedding, you
still would not expect the marriage to end with the bride suing the Cuban
government for sexual misconduct.² Yet that was the conclusion of Ana
Margarita Martinez’s marriage to Juan Pablo Roque, after Roque disap-
peared from their Florida residence (Bragg 1999). The mystery of Roque’s
absence was resolved a few days later when Roque appeared on television
broadcast from Havana and unveiled themselves as an undercover spy sent
to infiltrate the dissident community in the United States. This was an
unwelcome surprise for Martinez, who had thought that Roque was a fellow
dissident. Outraged, Martinez filed a lawsuit about the deception against
Roque’s employer—the Republic of Cuba. Since Cuba was not in the habit of
defending itself in the Florida legal system, Cuba did not contest the suit,
and the court awarded Martinez millions of dollars in damages. Part of
Martinez’s case was based on the claim that Roque’s fraud meant that
Martinez did not consent to sex with Roque.
There is a promising way to make Martinez’s case and an unpromising
way. The unpromising way was chosen by Martinez’s lawyer, who said
that Martinez ‘would not have given [their] consent, had [they] known’.
This puts the case in terms of counterfactuals: the lawyer appeals to what
Martinez would not have consented to. The problem with this approach is
that counterfactuals can hold for all sorts of weird reasons. Suppose that
Roque had instead concealed that they were a world champion at massage.
And suppose that if Martinez had known that Roque was a world champion
at massage, then Martinez would have refused to have sex on one of their
early dates and instead insisted on a massage. Even if counterfactually
Martinez ‘would not have given their consent, had they known’ how good
Roque was at massage, this counterfactual holds for a weird reason that does
not bear on whether Martinez consents in the actual world. Because coun-
terfactuals can hold for weird reasons, counterfactuals do not determine
whether someone gives valid consent to another person.
The promising way to make Martinez’s claim is to say that sex with Roque
did not fall within the scope of Martinez’s consent.³ By ‘the scope of Martinez’s
consent’, I mean the set of sexual encounters that Martinez made permissible
by giving consent. Consider the principle that this scope was determined by the
content of Martinez’s intentions. On the assumption that Martinez did not
intend to permit sex with a spy, this principle implies that sex with a spy did not
fall within the scope of Martinez’s consent. Given that Roque was a spy, it
would then follow that sex with Roque fell outside the scope of Martinez’s
consent. That is to say that Martinez did not consent to sex with Roque.
I had in mind this type of scope-based argument, rather than a
counterfactual-based argument, when I wrote the article that began my
interest in the topic of this book.⁴ In ‘Sex, Lies, and Consent’, I defended
³ A different way to make the claim is to invoke the idea that Martinez was insufficiently
informed to give valid consent. For discussion of how sexual deception can invalidate consent,
see Lazenby & Gabriel (2018).
⁴ The argument does not focus on what someone would agree to in a counterfactual scenario
but instead focuses on the actual scope of their consent. The argument relies on the premise that
5
the principle that our intentions determine the scope of our consent. As
I put the idea, ‘the rights that we waive are the rights that we intend to waive’
(Dougherty 2013: 734). That principle prompts us to think about the
features of a sexual encounter to which the consent-giver’s will is opposed
in the following sense: the consent-giver intends not to permit an encounter
with any of these features. I called such a feature a ‘deal-breaker’.⁵ It follows
from this principle and definition that if a deceiver hides from their victim
the fact that a sexual encounter has a feature that is a deal-breaker for the
victim, then the victim does not consent to this encounter. Since this principle
places no restrictions on what counts as a deal-breaker, it is not just someone
like Roque who is in trouble. The principle implies that a sexual encounter
could fall outside the scope of someone’s consent in virtue of deception about
any feature whatsoever. For example, this could potentially be deception
about someone’s natural hair colour or the university that they attended. If
either of these features is a deal-breaker for the consent-giver, then this
deception would lead to a non-consensual encounter.
What I came to see as the central mistake of that article was my
assumption that consent is a mental phenomenon.⁶ This assumption led
me to think that our intentions determine the scope of our consent.
However, I now think that this assumption is wrong. Our mental states
are private, and yet consent publicly transforms our moral relationships
the scope of their consent is grounded in the actual intentions that they have in the actual
scenario in which they give consent. For criticism of the article based on interpreting it as
making the counterfactual argument, see Tadros (2016); Manson (2017); Jubb (2017);
Bromwich & Millum (2018). Jonathan Herring (2005) makes a counterfactual-based argument
in defence of a similar conclusion to my conclusion about sexual deception. For an extension of
the argument beyond deal-breakers, see Matey (2019).
⁵ A possible defect of this term is that it may suggest that we should consider the deals that
someone would or would not counterfactually make. However, my definition concerns only the
actual contents of the consent-giver’s actual attitudes.
⁶ Another important mistake concerned my argument about the gravity of certain forms of
sexual misconduct. The article attracted criticism that persuaded me that I had offered a weak
argument for my claim that it is seriously wrong to have sex with someone without their consent
(Manson 2017; Brown 2020; Boonin n.d.). One of the main reasons that I offered for this claim
was that the claim provides the best explanation of why it is wrong to have sex with a comatose
person. However, I failed to consider key alternative hypotheses. Consider, for example, the
alternative hypothesis that it is seriously wrong to have sex with someone without their consent
when they strongly desire that this sexual encounter not take place. This hypothesis also
explains why it is seriously wrong to have sex with a comatose person. But the hypothesis
avoids implying that it is seriously wrong for a Yale graduate to have sex with a victim who does
not intend to have sex with a Yale graduate, yet does not strongly desire to avoid sex with a Yale
graduate. In so far as that implication strikes people as counterintuitive, the rival hypothesis
provides an explanation that is more attractive than mine of why it is wrong to have sex with a
comatose person. Given the availability of competing hypotheses like this, my argument to the
best explanation was weak.
6
⁷ Some of this work has been published in Dougherty (2020, 2021, forthcoming). Other work
of mine on coerced consent is currently unpublished. Although I do not discuss at length in this
book the conditions for when consent is valid, an interpersonal justification approach to consent
gets further support from providing an attractive account of these validity conditions.
⁸ For work that also aims to circumscribe the role that interpersonal justification plays in
interpersonal morality, see Frick (2015: 219–223). For related criticism of non-circumscribed
contractualism, see Kamm (2007: 455–490).
8
involves a deal-breaker for their partner and the agent has no duty to acquire
further evidence about this. Second, the principle still has severe implica-
tions for some deceivers. For example, if Roque’s evidence indicates that sex
with a spy is a deal-breaker for Martinez, then Martinez did not consent to
sex with Roque.
The book’s structure follows the trajectory of my thinking about the scope of
consent. The book has three main parts, each of which discusses a separate
account. Each account is a package of a view of consent, a principle for
consent’s scope, and an argument that motivates this view and principle.
Part I of the book sets out the ‘Mental Account’. According to this account,
consent is a mental phenomenon, and the scope of consent is fixed by the
consent-giver’s intentions. Part II sets out the ‘Successful Communication
Account’. According to this account, consent involves communicative
behaviour, and the scope of consent is fixed by what the consent-giver
successfully communicates to the consent-receiver. Part III sets out the
‘Evidential Account’, which I endorse. According to this account, consent
involves deliberately expressing one’s will, and the scope of consent is fixed
by certain evidence concerning how the consent should be interpreted.
Here is how that structure breaks down, chapter by chapter. In Chapter 1,
I begin by clarifying the question of what fixes the scope of consent, and
I discuss the methods that I will use to answer the question.
In Part I of the book, I discuss the Mental Account. In Chapter 2, I discuss
the account’s principal motivation. This is the ‘Autonomy Argument’. The
rough idea is that since consent is an expression of our autonomy, and since
our intentions are always under our control, consent consists in our
intentions.
In Chapter 3, I argue that the Autonomy Argument also has implications
for the scope of consent. There is little value to the consent-giver controlling
whether they consent, unless they also control what they consent to. This
extension of the Autonomy Argument motivates the ‘Permissive Intention
Principle’ for the scope of consent. This principle grounds the scope of
consent in the mental content of the consent-giver’s intentions concerning
which actions to permit.
In Part II of the book, I set out the case for and against the Successful
Communication Account. This account endorses the Behavioural View of
’ 9
Consent allows people to perform a range of actions, but this range has its
limits. Ashley says to their house guest, ‘Make yourself at home while I am at
work,’ and now Taylor can put their feet up and watch television. But
Ashley’s consent does not give Taylor permission to stick their finger in
Ashley’s peanut butter and suck it clean, even if Taylor likes doing that in
their own home. Among all of the permissions that Ashley can give Taylor,
some will be granted by Ashley’s consent, while others will not. I call this
range of permissions the ‘scope’ of Ashley’s consent.¹
This book’s central question is which principle governs the scope of
someone’s consent. The correct principle will specify the considerations
that determine what this scope is. There are various hypotheses for what
these considerations might be. Is Taylor prohibited a peanut-buttery digit
because of Ashley’s intentions when giving consent? Is Taylor prohibited
this because of the meaning of what Ashley says? Because of how Taylor
interprets Ashley? Because of background conventions concerning what
house guests are allowed to do in people’s homes?
To set up our investigation into which principle is correct, a few prelim-
inaries will help. In Section 1.1, we will pin down the question of what
determines the scope of consent. In Section 1.2, we will look at the methods
that we will use to answer this question.
¹ For work that uses this definition of the ‘scope’ of consent, see Archard (1998: 6–7);
Manson (2018). This differs from what Neil Manson and Onora O’Neill (2007: 77–84) have
in mind when they talk of the ‘scope of informed consent requirements’. By this, they mean the
biomedical interactions for which people must seek the informed consent of patients or research
participants.
The Scope of Consent. Tom Dougherty, Oxford University Press (2021). © Tom Dougherty.
DOI: 10.1093/oso/9780192894793.003.0002
12 ’
² Other key applications include consent to the use of property, consent to data-sharing, and
consent to the use of computers. However, I lack the expertise to address the complexity of these
issues. For a helpful essay on the legal aspects of consent to the use of computers, which brings
out the importance of the issue of consent’s scope, see Grimmelmann (2016).
³ The orthodoxy is that there are three necessary conditions for valid consent. First, valid
consent must be given by a suitably competent agent. For example, if someone is highly
intoxicated or a small child, then it is likely that their consent is morally inefficacious.
Second, valid consent must be given by someone who is suitably free. For example, consent
given under a death threat is also morally inefficacious. Third, valid consent must be given by
someone who is suitably informed. For example, medical consent is often not valid when given
by a patient who is unaware of alternative treatments.
⁴ For similar definitions of ‘valid consent’, see Wertheimer (2003: 121); Pallikkathayil (2011):
7; Tadros (2016: 204); Bolinger (2019: 80).
⁵ For consent in the law, see Westen (2004) and Beyleveld & Brownsword (2007). For
discussion of consent and sexual misconduct in the law, see Schulhofer (1998).
13
For brevity, I will simply call these ‘duties’ and ‘rights’ from now on. These
are the aspects of our moral relationships that are affected by consent. If
Y gives consent to X performing action A, then Y can release X from a duty
not to perform A and waive a right against X performing A. In that respect,
consent is a three-place relation between the individual giving consent, the
individual receiving consent, and an action (or set of actions). It will help to
have terms to refer to the individual who gives consent and the individual to
whom consent is given. Respectively, I call these individuals the ‘consent-
giver’ and the ‘consent-receiver’. I do not mean for this terminology to imply
that a consent-receiver must be aware of the consent. Indeed, in due course,
I will argue that someone can be unaware that they have received consent.
Instead, all that I mean by calling someone a ‘consent-receiver’ is that they
are the target of the consent.
⁶ Consequently, I will not discuss an interesting possibility that Serena Olsaretti suggested to
me. Could an instance of low-level coercion undermine consent to one action while not invali-
dating consent to a different action? If this is possible, then coercion can have the effect of putting
some, but not all actions outside the scope of someone’s consent.
⁷ For discussion of how claim-rights and duties correlate, see Thomson (1990). Some
scholars refer to directed duties as ‘bipolar obligations’. For discussion of directed duties and
bipolar obligations, see Sidgwick (1874); Sreenivasan (2010); Thompson (2004); Darwall (2006);
Cruft (2019); Wallace (2019).
14 ’
The moral default is that we owe each other duties not to interact with
each other’s personal domains. For example, we have duties not to lay
hands on each other’s bodies or property. These duties form protective
perimeters that demarcate each individual’s personal domain. Consider
what happens if someone breaches one of these duties. Suppose that you
drop your antique crystal vase on my foot and the vase shatters. I can
complain that your action was wrong because it destroyed a valuable
crystal vase for no good reason. This complaint would not be grounded
in my right to determine how you act in my personal domain. By contrast,
if I complain that you are violating my right that you not harm my foot,
then I am voicing a domain-based complaint against your action. I have
this complaint because you have wronged me by breaching a duty that you
owed to me. This breach would typically leave a ‘moral residue’ in the sense
that you must apologize and compensate me for the harm that I suffered
(Thomson 1990: 82–98).
Valid consent has the normative effect of releasing people from these
domain-based duties. Consequently, an individual’s consent can make it the
case that the individual is not wronged by how an agent acts in the
individual’s personal domain. But while consent can eliminate this type of
wronging, it may be that the consent does not prevent the consent-receiver
from wronging the consent-giver in a different way. Suppose that Ashley
consents to Taylor hanging out in their home while Ashley is at work.
In addition, Ashley makes Taylor promise to go out and buy milk at some
point during the day. Taylor does not buy milk and instead stays inside all
day. By staying inside all day, Taylor does not wrong Ashley in virtue of
trespassing in Ashley’s personal domain. That wronging is precluded by
Ashley’s consent. However, Taylor does wrong Ashley in virtue of breaking
their promise to Ashley. Ashley’s consent does not eliminate this wronging.
This illustrates the general phenomenon that even if an individual consents
to an agent’s action, it may still be that the agent wrongs the individual with
this action, and it may still be that the action is impermissible. This point is
particularly important for sexual ethics. While an agent needs their partner’s
sexual consent to avoid wronging them, consent is not a moral panacea.
A sexual encounter can be consensual and yet be morally problematic on
other grounds.
Since consent releases people from duties and waives rights, the norma-
tive effects of consent are constrained by facts about which duties and rights
we have simply as moral persons. These are our ‘natural’ rights and duties,
which contrast with the rights and duties that we ‘acquire’ as a result of our
15
⁸ There is a terminological issue as to when, if ever, we should use the term ‘consent’ to refer
to releasing people from acquired duties and waiving acquired rights. I will remain neutral on
this terminological issue because nothing substantive hangs on it and because acquired rights
and duties will not be the primary focus of our discussion.
⁹ In particular, see MacKinnon (2016: 440) and also Palmer(2017: 476); Kukla (2018:
75–76); Gardner (2018: 60).
¹⁰ As Karamvir Chadha (2020) points out, joint sexual activity is composed of particular
sexual acts performed by individuals, and these individuals need each other’s consent for
performing these acts.
16 ’
To analyse this case, Liberto (2017: S137) makes the following two claims.
First, Jo has a coarse-grained right that Casey not have sex with Jo. Second,
Jo does not have a fine-grained right that Casey not have sex with Jo when
Casey is in pain. Since consent can only make a difference to rights and
duties that actually exist, the scope of Jo’s consent could not be affected by a
non-existent fine-grained right. Therefore, on Liberto’s view, it is impossible
for Jo to restrict the scope of their consent to sexual encounters in which
Casey is not in pain.¹¹
The normative effects of consent are also constrained by facts about
which rights and duties the consent-giver has the authority to change. For
example, when Ashley tells Taylor to make themselves at home, Taylor’s
range of new permissions is partly determined by the permissions that
Ashley can grant. Ashley cannot let Taylor clamber through their neigh-
bour’s window to make toast, since it is not up to Ashley who gets to do that.
Since Taylor owes that duty to the neighbour, Ashley cannot release Taylor
from the duty. Likewise, the normative effects of our consent would also be
constrained if we cannot waive some of our own rights (Tadros 2011, 2016).
Suppose that someone explicitly says to another person, ‘You may kill and
then eat me.’ The consent-giver clearly means to permit being cannibalized.
But consider the hypothesis that the consent-giver cannot waive their right
against being cannibalized. If this hypothesis is correct, then the consent
would not create a permission for the consent-receiver to cannibalize the
consent-giver. Similarly, if the consent-giver cannot waive their right against
being cannibalized, then this would restrict the normative effects brought
about by the consent-giver saying, ‘You can do whatever you want to me.’
Because of these points, our background theory of rights and duties
constrains our account of how consent changes our moral relationships
¹¹ There is a separate issue of whether someone can place conditions on when their consent
has moral force. For example, Jo could say, ‘On condition that you do not have a headache,
I hereby waive my right against sex with you.’ For discussion of conditional consent, see Chadha
(forthcoming).
17
with each other. In this book, I will be setting to one side the question of
which background rights and duties we have. Downstream from accepting a
theory of these background rights and duties, we need a principle that tells
us which of these are altered by someone’s consent. That principle is the
focus of this book. Accordingly, the foregoing points are framing assump-
tions for our discussion. These points circumscribe this book’s central
question of what determines the scope of someone’s consent. We can state
this question as follows: of the domain-based duties from which a consent-
giver can release a consent-receiver, what determines which duties are
eliminated by the consent-giver’s valid consent? Since rights are equivalent
to duties, that question could also be stated in terms of rights. To avoid
cluttering our discussion by repeating these framing assumptions, I will
leave these implicit from now on.
1.2 Methodology
What methods should we use to answer the question of what determines the
scope of consent? There are four methods that I will sketch upfront.
The comparative method. Often, it is a good idea to answer a philosoph-
ical question holistically, by fleshing out alternative answers and choosing
between these answers in light of all their respective advantages and disad-
vantages. As well as making it more likely that we arrive at the truth, this
method helps us understand why the question is philosophically interesting
and difficult. This is how I interpret the ‘comparative method’ of moral
philosophy.¹²
Here is how I will adopt the comparative method in our inquiry.
Ultimately, we are seeking the correct principle that specifies what deter-
mines the scope of someone’s consent. To choose between candidate prin-
ciples, we need to see how these principles can combine with views of what
constitutes consent, as well as arguments that motivate these views and
principles. I will use the term ‘accounts’ to refer to packages of arguments,
views of consent, and principles for consent’s scope. This book will compare
the pros and cons of three main accounts. These are the Mental Account, the
Successful Communication Account, and the Evidential Account. When we
¹² A paradigmatic use of this method is Henry Sidgwick’s (1874) investigation into the
‘Methods of Ethics’. I interpret John Rawls (1971) as using this method when arguing for
their principles of justice over utilitarianism.
18 ’
investigate these accounts, it will turn out that there is a special reason to
adopt the comparative method for our inquiry: certain arguments for views
of consent also provide support for principles governing consent’s scope.
The method of cases. One way to make progress in moral philosophy is
to consider the implications that views and principles have for various cases.
This is the so-called method of cases. It has two parts. First, the method
involves taking an independent stance on which claims we should accept or
reject about certain cases. Sometimes, these claims can be accepted as
intrinsically plausible. Often, when philosophers wish to indicate that we
should accept a claim on its own terms, then they will describe this claim as
‘intuitively’ correct or say that the claim is supported by ‘intuition’.
As I understand talk of ‘intuition’ in this context, this does not presuppose
any particular moral epistemology and instead is simply a way of flagging
that a claim is being offered as an undefended premise in an argument. On
this way of thinking, if one philosopher presents a claim as ‘intuitive’, and
another philosopher does not find the claim plausible, then the latter
philosopher does not accept a premise in the former philosopher’s argu-
ment. At other times, it can be appropriate either to provide a sub-argument
that defends a claim about a case or a discussion of the claim that makes
clear why we should accept it. Second, the method uses these claims to
evaluate views and principles. On the one hand, if a view or principle entails
a claim that we independently have reason to reject, then we have reason to
reject the view or principle. On the other hand, if a view or principle entails a
claim that we ought to accept, then that counts in favour of the view or
principle. In this book, I will use this method extensively to decide which
views and principles to reject and which to accept.
There are at least three reasons why the method of cases can be helpful.
First, if we just discuss abstract ideas, then our discussion risks becoming
hard to follow and engage with. It is easier to see what it is at issue when we
look at concrete examples. In this respect, I think of using cases as imple-
menting the common advice that authors should use examples to make their
writing clear and easy to follow. Second, using cases can also make commu-
nication more efficient. Once a community of philosophers has the knack
for thinking about what principles imply about cases, these philosophers can
quickly communicate a lot with a little. Third, the method of cases pushes us
to dive deep into the details of our topic. It is easy to skate over distinctions
when doing philosophy at a high level of abstraction, and it is also easy to
miss implications of views or principles. A good way to probe these details is
to consider what these views and principles imply for cases. I do not mean to
imply that the method of cases is essential in this regard. Certainly, there are
19
1.3 Summary
What is consent? This may sound like a purely metaphysical question, but
really it is a question about morality—about what changes our moral
relationships with each other (Wertheimer 2000).
That means that the question has implications both for our theory of
which actions are right and wrong and for our policies that deter and punish
wrongdoing. Nowadays, it is common for a jurisdiction’s criminal law to
define serious sexual offences partly in terms of the absence of valid con-
sent.¹ In turn, this requires defining consent. The standard legal definition is
in terms of someone’s will or choice. For example, the United Kingdom’s
2003 Sexual Offences Act states that ‘a person consents if he agrees by
choice, and has the freedom and capacity to make that choice’.² Similarly,
when revising the sexual offences section of the Model Penal Code, the
American Law Institute recently defined consent in terms of someone’s
willingness to engage in sexual activity (Moringo 2016). These legal defin-
itions resonate with the common idea that a sexual encounter is non-
consensual when it is against a victim’s will. With respect to morality, this
idea is captured by the following view of consent:
Here I am using the term ‘mental attitude’ loosely to cover both mental
events and mental states. To fill in the details of the Mental View, we need to
say more about which mental attitude constitutes consent. The Mental View
contrasts with the Behavioural View, according to which consent requires
certain behaviour. There are different versions of the Behavioural View,
¹ The criminal law often uses other terms to refer to valid consent. For example, sometimes
this is referred to simply as ‘consent’. In that terminology, invalid consent would be described as,
e.g., the ‘absence of consent’. In the United States, a small number of states’ rape laws include an
‘affirmative consent definition’ according to which consent must be expressed in behaviour
(Tuerkheimer 2016: 451).
² https://www.legislation.gov.uk/ukpga/2003/42/contents, accessed 6 October 2018.
The Scope of Consent. Tom Dougherty, Oxford University Press (2021). © Tom Dougherty.
DOI: 10.1093/oso/9780192894793.003.0003
24
which take different stances concerning what is sufficient for consent. But all
versions of the Behavioural View posit a necessary condition for consent: the
consent-giver must engage in certain behaviour. This necessary condition is
denied by the Mental View.
In this chapter, we will develop the Mental View of consent and consider
what motivates the view. In Section 2.1, we will lay out the central argument
in favour of the Mental View. This is the Autonomy Argument. In
Section 2.2, we will turn to the question of which position the Mental
View should take concerning the type of attitude that constitutes consent.
In Section 2.3, we will critically assess the Autonomy Argument by consid-
ering the extent to which the Behavioural View also connects consent with
autonomy.
One way to motivate the Mental View over the Behavioural View is to argue
that the Mental View has more attractive implications for particular cases.
Along these lines, Larry Alexander (2014: 105) discusses a case in which a
foreigner decides to let their partner fondle them. However, the foreigner
has a poor grasp of their partner’s language. The foreigner utters a phrase
that means ‘do it’ in their own language, but means ‘do not’ in their partner’s
language. Accordingly, their partner believes that the foreigner is unwilling
to be fondled, but their partner continues to fondle the foreigner nonethe-
less. Alexander (2014: 105) has the intuition that their partner ‘is doing
nothing that is without [the foreigner’s] consent and therefore wrong’.
Similarly, Heidi Hurd (1996: 137) considers a case in which someone who
cannot move, hear, or speak intends to have sex with another person, even
though the former person cannot communicate with the latter. Hurd’s
intuition is that the former person consents to the sex.
This strategy of appealing to cases has had mixed results. Many people
have the opposite intuitions about these cases. For example, Alan
Wertheimer (2000: 571) also considers a case in which an individual is
willing to have sex with their partner, even though the individual indicates
that they are unwilling to have sex.³ Since their partner believes that the
individual is unwilling to have sex, this case is structurally analogous to
³ This is a hypothetical variant on the infamous 1975 case in the United Kingdom’s House of
Lords, Director of Public Prosecutions v. Morgan, in which the victim was unwilling to engage in
25
Alexander’s case. However, Wertheimer has the intuition that this individual
does not consent. In addition, Wertheimer (2003: 147) considers the very
same case as Hurd’s. However, Wertheimer has the intuition that consent is
absent in this case.
As will become clear in the course of this book, I like using hypothetical
cases as much as the next philosopher. Otherwise, philosophical arguments
risk becoming inaccessibly abstract, and it is hard to see the implications of
general principles. But the case-based methodology has its limits. It breaks
down when people disagree in their intuitions about the relevant cases. This
disagreement makes the method dialectically unhelpful. We cannot change
someone’s mind by appealing to intuitions that they do not share. So, when
the method of cases leads to an impasse, we need to look for other argu-
ments in favour of one view rather than the other.
Fortunately for the Mental View, there is an argument that can be offered
in its defence. This argument appeals to the idea that consent is an exercise
of an individual’s autonomy.⁴ In this context, we should conceive of auton-
omy as a capacity for moral self-governance.⁵ So conceived, our autonomy
partly consists in our ability to control our moral boundaries. Hurd (1996:
124–5) invokes this conception of autonomy to argue as follows:
If autonomy resides in the ability to will the alteration of moral rights and
duties, and if consent is normative significant precisely because it consti-
tutes an expression of autonomy, then it must be the case that to consent is
to exercise the will. That is, it must be the case that consent constitutes a
subjective mental state.
In this way, Hurd argues that we should accept the Mental View on the
grounds that consent is an expression of autonomy.
Hurd’s argument is not persuasive because it overlooks the fact that our
behaviour is also an expression of our autonomy. For example, we express
our autonomy by communicating with other people. If a version of the
sexual activity. For other appeals to cases of non-communicated consent in support of the
Behavioural View, see Den Hartogh (2011: 301); Owens (2012: 571).
⁴ Some people are skeptical about the connection between consent and common conceptions
of autonomy (Manson & O’Neill 2007: 16–22, 69–72).
⁵ In addition to conceiving of autonomy as a capacity, ethicists have developed other
conceptions of autonomy. For example, scholars have developed accounts of what it is to be
an autonomous agent, accounts of what it is to make a choice autonomously, and accounts of
the value of autonomy. For helpful overviews of the literature on autonomy, see Killmister
(2018); Stoljar (2018); Christman (2018); Buss & Westlund (2018).
26
Here Ferzan assumes that the correct view of consent best respects auton-
omy. This raises the question what it is for a conception of consent to ‘best
respect’ autonomy. To reach the conclusion that the Mental View is correct,
Ferzan’s argument requires the assumption that consent is constituted by
whatever is maximally within our autonomous control. This assumption
would provide us with reasons to favour the Mental View over the
Behavioural View. To engage in physical behaviour, we need cooperation
from the world around us. For example, we can communicate with other
people only if they can interpret what we are saying. By contrast, to exercise
our mental capacities, we need only an external environment in which we
can think. Assuming that we have functioning mental capacities, the exercise
of these capacities is entirely within our control. Since the Mental View
implies that the exercise of our mental capacities determines how we alter
our normative boundaries, the Mental View entails that we have as much
control as possible over these boundaries.
We can fortify this motivation for the Mental View by considering how
someone’s consent can determine whether they are wronged by another
person’s behaviour. Along these lines, Ferzan connects consent with griev-
ances. Ferzan (2016: 406) claims that ‘an individual is not wronged, and does
not experience conduct as a wrong, when willed acquiescence is present’.
I take Ferzan’s idea to be that in these contexts it should be up to the
individual whether or not they are wronged by another person. To see
why this idea is attractive, consider an action that could potentially wrong
an individual by infringing their rights. It is tempting to think that if the
individual makes up their mind that they are wronged by this action, then
they are wronged by it. And it is tempting to think that if the individual
? 27
makes up their mind that they are not wronged by the action, then they are
not wronged by it. This would be to see the individual’s thoughts as
determining whether they are wronged by the action. If the individual’s
consent to the action consists in their thoughts, then their thoughts deter-
mine whether they are wronged by the action.
The Autonomy Argument also has implications for the question of which
mental attitude constitutes consent. For example, is this a desire, choice, or
intention?
By now, scholars have reached a consensus that consent does not consist
in desire.⁶ We might have been tempted to focus on desires because, in
sexual encounters, people should be attentive to whether their partners want
to have sex. Similarly, in these encounters, people’s conscious thoughts are
often about how much they want to have sex with another person. However,
there is a significant problem with identifying consent with desire.
According to the Autonomy Argument, consent should be under our
intentional control. Yet we do not control what we desire. Compare these
cases:
Invitation/Desire. Your friend has not thought about whether to invite you
over to their house. As it happens, their desire to invite you is stronger than
their desire not to invite you.
Invitation/Choice. Your friend has the same desires as they have in the
Invitation Desire case. In addition, your friend deliberates about whether to
invite you and decides to do so.
In the Invitation/Desire case, your friend has not exercised any control over
whether you come to their house, as they do not control what their desires
are. However, in the Invitation/Choice case, your friend has exercised con-
trol over their decision to invite you. Accordingly, if an advocate of the
Mental View accepts the Autonomy Argument, then they should say that
⁶ At one point, Peter Westen (2004: 32) maintains that ‘factual attitudinal consent can be
conceptualised—and, I believe, ought to be conceptualised—as consisting invariably of mental
states of desire alone’. Elsewhere, Westen (2004) theorizes consent in terms of choices. For
critical discussion of Westen on this point, see (Ferzan 2006: 204–7).
28
your friend consents in the Invitation/Choice case, but not in the Invitation/
Desire case. Therefore, they should deny that a mere desire is sufficient for
consent.
Rather than thinking of consent in terms of desire, some scholars think of
consent as a mental act like a choice or decision. For example, Ferzan (2006:
206) claims that ‘what ultimately matters is not that one has a desire but that
one chooses to act based on that desire. The desire does not do the work —
the choice does.’⁷ This idea is promising, but it cannot be quite right. In
order for consent to make an action permissible, the consent-giver must still
be consenting to the action at the time that the action takes place. To
illustrate this point, compare the following two cases:
Car/Constant. At 10 a.m., Parent decides that Teenager may use the family
car at 7 p.m. At 7 p.m., Parent is still willing for Teenager to use the car.
Teenager uses the car at 7 p.m.
Car/Change. At 10 a.m., Parent decides that Teenager may use the family
car at 7 p.m. By 7 p.m., Parent has changed their mind and is no longer
willing for Teenager to use the car. Teenager uses the car at 7 p.m.
Teenager uses the car with Parent’s consent only in Car/Constant. It is not
enough that Parent had previously made a choice to let Teenager use the car
in Car/Change. In addition, Parent’s willingness must persist through to the
time at which Teenager uses the car. However, Parent’s choices do not
persist in this way. Like other mental acts, choices are events. Events have
finite durations. In the above cases, Parent’s choices terminated at 10 a.m.
To respond to this point, an advocate of the Mental View could take the
position that someone consents if they have made a choice and subsequently
have not made the opposite choice. This position still holds that facts about
consent consist in facts about choices. However, this position does not
account for the ways that people’s minds can change without making
choices. Consider:
⁷ In later work, Ferzan (2016: 406) follows Westen in claiming that consent is ‘an act of willed
acquiescence’. Ferzan (2016: 398) clarifies this by claiming that this involves ‘an internal choice
to allow contact—a decision that “this is okay with me” ’. Along similar lines, Alexander (1996:
166) holds that ‘when one consents to what would otherwise be a boundary-crossing act of
another, one chooses to forgo or waive one’s moral objection to the boundary crossing . . . To
consent is to form the intention to forgo one’s moral complaint against another’s act.’ In later
work, Alexander (2014: 108) states that consent consists in ‘waiving one’s right to object—or, if
that sounds too much like a non-mental action, that of mentally accepting without objection
another’s crossing one’s moral or legal boundary (the boundary that defines one’s rights)’.
? 29
Car/Forgetful. At 10 a.m., Parent decides that Teenager may use the family
car at 7 p.m. By 7 p.m., Parent has forgotten that they have made this
decision and no longer intends to permit Teenager to use the car.
Consequently, at 7 p.m. Parent is unwilling for Teenager to use the car.
Teenager uses the car at 7 p.m.
In Car/Forgetful, Parent’s mind has changed even though they never make a
choice that is opposite to the choice that they made at 10 a.m. If we take the
Autonomy Argument seriously, then we should deny that Teenager has
Parent’s consent at 7 p.m. This is because at 7 p.m. Parent is unwilling for
Teenager to use the car. If Parent’s consent is maximally within their
autonomous control, and Parent is unwilling for Teenager to use the car at
7 p.m., then Parent does not consent at 7 p.m.
Rather than identifying consent with a choice, an advocate of the Mental
View should identify consent with an intention.⁸ There is an important
connection between choices and intentions: one normally forms an inten-
tion by making a choice. However, intentions and choices belong to different
ontological categories. Choices are mental events, while intentions are
mental states. Because intentions are mental states, Parent’s intentions can
persist through to the time at which Teenager uses the car.⁹ This explains
why Parent consents at Car/Constant. In that case, at 7 p.m. Parent still
intends to let Teenager use the car. This also explains why Parent does not
consent in Car/Change or Car/Forgetful. In those cases, at 7 p.m. Parent no
longer intends to let Teenager use the car.
The view that consent consists in intentions has been objected to by
Victor Tadros (2016: 205):
⁸ For a version of the Mental view that conceives of consent in terms of intentions, see Hurd
(1996: 126–38).
⁹ For discussion of the difference between mental events and mental states, see Steward
(1997). Desires are also mental states, but Michael Bratman (1982) has shown that intentions
are different from desires. While desires are the inputs to our practical deliberation, intentions
are among the outputs of our deliberation. In the Invitation/Desire case, your friend has not yet
deliberated about whether to invite you over for dinner, and so they have not formed an
intention to invite you. In the Invitation/Choice case, your friend has concluded this deliberation
by making a choice. By making this choice, they form an intention to invite you.
30
It is clear from our preceding discussion why the Mental View provides
an individual with control over their normative boundaries. But to deter-
mine whether this consideration gives us powerful reasons to accept the
Mental View over the Behavioural View, we need to consider the amount of
autonomous control offered by the Behavioural View.
Interestingly, defenders of the Behavioural View have also appealed to
autonomy to motivate their view. For example, Seana Shiffrin (2008: 500)
holds that someone makes promises and gives consent through the ‘exercise
and expression of her will alone’. Since Shiffrin holds that consent requires
expressing one’s will, Shiffrin denies that a mental attitude is sufficient for
consent. In that respect, Shiffrin rejects the Mental View of consent.
However, since Shiffrin holds that consent requires exercising one’s will,
Shiffrin agrees that a mental attitude is necessary for consent. Shiffrin argues
that this idea is ‘part and parcel with any plausible conception of an
autonomous agent’. As Shiffrin (2008: 502) elaborates, if someone were
unable to give consent, then they would have unwaivable rights, which:
Second, we can have the correlative ability to ensure that we are consenting
when we intend to consent:
Both capacities are maximized by the most plausible version of the Mental
View, which holds that a certain intention is necessary and sufficient for
consent. From now on, I will have this version in mind when I talk, for
brevity, of the Mental View.
When it comes to positive autonomy, the Mental View has an advantage
over the Behavioural View. According to the Mental View, a consent-giver
can control whether they consent simply by controlling whether they have a
certain intention. But according to the Behavioural View, an individual must
also engage in some form of behaviour to give consent. If an individual
cannot engage in this behaviour, then the Behavioural View implies that the
32
they consent. We saw that, for the Autonomy Argument to motivate the
Mental View over the Behavioural View, the argument requires the contro-
versial assumption that an individual has maximal control rather than
robust control. That assumption is questionable, and I am not aware of
any defence that has been offered for this assumption. This assumption
cannot be motivated simply by noting that there is an important connection
between consent and autonomy. This connection is secured by the uncon-
troversial assumption that an individual has a robust degree of control over
whether they consent. That uncontroversial assumption is consistent with
endorsing the Behavioural View.
2.4 Summary
In the Introduction, we noted that the scope of consent matters for sexual
deception: a victim of deception can unwittingly take part in a sexual
encounter that falls outside the scope of their consent. The scope of consent
also matters for other forms of sexual misconduct. Consider the testimony
of Martha Nussbaum (2016), who recalls, ‘I certainly intended to consent to
intercourse. What I did not consent to was the gruesome, violent, and
painful assault that he substituted for intercourse.’ Here Nussbaum is
making the point that consent to one form of sexual activity does not entail
consent to any form of sexual activity. While a benign sexual encounter fell
within the scope of Nussbaum’s consent, the actual violent assault did not.
Moreover, Nussbaum gestures at what sets the boundaries of the scope of
their consent. Nussbaum suggests that this is fixed by what they intended to
consent to. This fits with the idea that a sexual encounter is non-consensual
in virtue of being against someone’s will.
In this chapter, we will discuss a principle that implies that someone’s
intentions determine the scope of their consent. In Section 3.1, we will see
that the Autonomy Argument has implications for the scope of consent. In
Section 3.2, we will see that an advocate of the Mental View should not
identify consent with intentions that have descriptive contents. In
Section 3.3, we will see that an advocate of the Mental View should instead
identify someone’s consent with their ‘permissive intentions’. Roughly, these
are intentions to permit another person’s actions. This leads us to the
‘Permissive Intention Principle’ for the scope of consent.
Why does the Autonomy Argument have implications for the scope of
consent? Because there is little value to controlling whether one gives
consent, unless one simultaneously controls what one gives consent to.
Accordingly, we can appeal to autonomy not only to defend a view of
The Scope of Consent. Tom Dougherty, Oxford University Press (2021). © Tom Dougherty.
DOI: 10.1093/oso/9780192894793.003.0004
36
what consent is, but also a principle for the scope of consent. Along these
lines, I once argued that:
rights are intimately linked to our autonomy and agency. They mark out
personal realms over which we have exclusive control, and our decisions
determine exactly what may permissibly happen within these realms.
Having these personal realms is crucial to our leading our lives in the
ways that we should like. Fundamentally, this generates duties in other
people to respect our wills: they must respect the choices that we make
about what shall happen within these realms. If our choices are to max-
imally determine the permissibility of others’ actions, then the rights that
we waive must be the rights that we intend to waive.
(Dougherty 2013: 734–5)
Since consent waives rights, I was defending a view of consent’s scope: the
consent-giver’s intentions determine which actions are normatively affected
by their consent. My reason was that consent should manifest the consent-
giver’s autonomy. This is the key idea behind the Autonomy Argument.
A similar point arises with the strand of the Autonomy Argument that
concerns an individual’s grievances. In Chapter 2, we looked at two related
ideas. The first idea is that someone is not wronged by an action if they are
willing to permit the action. The second idea is that someone is wronged by
an action if they are unwilling to permit the action and their consent is
needed for the action. These ideas also support the idea that the scope of
consent is grounded in the contents of the consent-giver’s intentions.
Consider a particular action for which an agent needs an individual’s
consent. Suppose that this action is against the individual’s will. According
to the grievances strand of the Autonomy Argument, it follows that the
individual is wronged by this action. Therefore, the action would fall
outside the scope of their consent. Now suppose that the action is not
against the individual’s will. According to the grievances strand of the
Autonomy Argument, it then follows that the agent does not wrong the
individual by performing the action. Therefore, the action falls within the
scope of the individual’s consent. Joining the dots, the grievances strand of
the Autonomy Argument implies that the scope of someone’s consent is
determined by which actions are against their will.
Thus, the Autonomy Argument does not just support the view that
consent consists in intentions. The argument also supports a principle for
the scope of consent. According to this principle, the scope is determined by
37
the contents of these intentions. Since the words ‘scope’ and ‘content’ may
seem similar, let me clarify the senses that these terms have in our discus-
sion. The scope of consent concerns the normative effects of the consent.
The content of an intention is a descriptive feature of someone’s psychology.
Therefore, this principle for the scope of consent implies that certain
normative effects are grounded in certain features of consent-givers’
psychologies.
To make this principle precise, we need to say more about the contents of
these intentions. But we can already get the gist of how the principle governs
the scope of consent. To apply this principle to any case, we should consider
which actions are against the consent-giver’s will. For example, the principle
would imply that Taylor is allowed to use Ashley’s en suite bathroom if and
only if Ashley using the bathroom is not against Taylor’s will.
There are two reasons why we must reject Hurd’s view. The first reason to
reject Hurd’s view is that it incorrectly specifies the necessary conditions for
consent. Hurd’s view implies that intending someone’s action is a necessary
condition of consenting to this action. However, this is not a necessary
condition for consent. It is possible to consent to someone’s action without
intending that they perform this action. For example, you may be indifferent
whether someone uses your pen. If you are indifferent, then you neither
intend that they use the pen nor intend that they do not use the pen. Even if
you have no intentions one way or the other, you could still give this person
permission to use the pen. For another counterexample to Hurd’s necessary
condition, consider an adapted case of Victor Tadros’s (2016: 209):
Car/Truancy. Teenager has been skipping school and driving the family
car. Intending to get Teenager to choose to go to school, Parent says, ‘I am
not okay with you skipping school and driving around—it bothers me a lot
as your parent. Still, I want you to attend out of your own free will. So I am
releasing you from your duty not to use the car. But my expectation is that
you will respond maturely and decide to attend school.’
Parent intends that Teenager does not use the car. However, Parent consents
to Teenager using the car. Therefore, intending Teenager to use the car is not
a necessary condition for consenting to Teenager using the car.¹
The second reason to reject Hurd’s view is that it incorrectly specifies the
sufficient conditions for consent. Hurd’s view implies that intending some-
one’s action is sufficient for consenting to this action. However, this is not a
sufficient condition for consent. It is possible to intend that someone
performs an action without consenting to this action. For example, someone
might intend to entrap another person in wrongful activity (Den Hartogh
2011: 301; Tadros 2016: 210). Consider:
Entrapment. Bully says that they will smash Enemy’s garden gnome, come
hell or high water. Enemy says to Bully, ‘I believe that you will do this, but
I am not going to be intimidated into locking my gnome in my shed.
Instead, I have set up CCTV to catch you wrongfully smashing my gnome
¹ Similarly, David Owens (2011: 412–3) notes that you could consent to someone’s action in
order to prevent them from performing this action. Suppose that you know that if you do not
invite your enemy to your party, then they will attend to ruin your party. You also know that if
you invite your enemy, then they will snub you by not attending. To prevent your enemy from
coming to the party, you invite them.
39
without my consent. I will use this evidence against you.’ Enemy knows
that this warning will not deter Bully.
Enemy does not consent to Bully smashing their gnome. Yet Enemy chooses
to leave the gnome outside, with the intention that Bully smashes the gnome.
Therefore, intending Bully to smash the gnome is not sufficient for consent-
ing to Bully smashing the gnome.
To avoid the problems with Hurd’s view, an advocate of the Mental View
should claim that someone’s consent consists in an intention with a norma-
tive content. Since the effect of this consent is to release another person from
a duty, this would be an intention to release that person from a duty. I will
call this type of intention a ‘permissive intention’. We can then state a
principle for the scope of consent as follows:
² For a defence of a principle for consent’s scope along these lines, see Dougherty (2013:
734–5); Manson (2018). Similarly, Alexander (1996: 166) claims that to ‘consent is to form the
intention to forgo one’s moral complaint against another’s act’. See also Alexander (2014: 108).
Less precisely, Ferzan (2016) claims that consenting to an action involves deciding that this
action is ‘okay with’ the consent-giver. Because Ferzan’s view is imprecise, it gets the wrong
result with the Car/Truancy case. Parent consents to Teenager using the car even though Parent
is explicit that they are not okay with Teenager using the car. A similar problem confronts
Alexander Guerrero’s (forthcoming) view that consent involves ‘affirmative endorsement’ of
some state of affairs. There is a clear sense in which Parent is not affirmatively endorsing
Teenager’s use of the car. Accordingly, Guerrero would need to specify the particular type of
affirmative endorsement that consent consists in.
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rechtstreeks betrekking hebben. Dit is eveneens het geval met het
voor Friesche namenvorschers allerbelangrijkste hoofdstuk over
Zaansche Eigennamen, voorkomende in het werk van Dr. G. J.
Boekenoogen, De Zaansche Volkstaal, Leiden, 1897. Eindelijk
bevat het werk Nomina geographica Neerlandica, Amsterdam, 1882
en vervolgens, nog eenige opstellen, door mij geschreven, over
Friesche [199]plaatsnamen, en in het bijzonder eene uitvoerige, en
leerrijk toegelichte lijst van oude Friesche plaatsnamen, tegelijk eene
bijdrage tot de oude aardrijkskunde van Friesland, geschreven door
Dr. F. Buitenrust Hettema. Het laatst verschenen werk op Friesch
naamkundig gebied is mijne Friesche Naamlijst (Onomasticon
frisicum) Leeuwarden, 1898, eene volledige, stelselmatig geordende
en beredeneerde lijst van Friesche eigennamen, zoo mans- en
vrouwen-vóórnamen als geslachts- en plaatsnamen, in hunnen
onderlingen samenhang en met toelichtingen voorgesteld.
Ook mogen hier niet onvermeld blijven drie werken van Oost- en
Wezer-Friezen; namelijk een van Bernh. Brons Jr., Friesische
Namen und Mittheilungen darüber, Emden, 1877, dat uitvoerige
lijsten van Friesche eigennamen bevat, hoofdzakelijk uit Oost-
Friesland; een van Dr. Karl Strackerjan, Die Jeverländischen
Personennamen mit Berücksichtigung der Ortsnamen, Jever, 1864,
’t welk van groote geleerdheid en navorschingsijver getuigt. En
eindelijk een opstel van Aug. Lübben, Einiges über Friesische
Namen, voorkomende in Haupt’s Zeitschrift für Deutsches
Alterthum, 1856.
Ten slotte moet hier nog genoemd worden een boek, waarin ook de
Friesche namen en naamsvormen bijzonderlijk behandeld worden
(in het hoofdstuk Ueber besondere Friesische Namensformen und
Verkürzungen); namelijk Dr. Franz Stark, Die Kosenamen der
Germanen, Weenen, 1868. In dit werk worden de eigenaardige
algemeen Germaansche en bijzonder Friesche vleivormen der
oorspronkelijk volledige namen duidelijk in het licht gesteld.
Evenzeer als van den volledigen, zij het dan ook ingekorten en
eenigermate verbasterden naam A l d e r t (A d e l h a r t ), van
D o u w e , en van de vleinamen M i n n e en O f f e , zoo zijn ook van
de verkleinnamen die reeds als mansnamen dienst doen, bij
voorbeeld van B a u k e , I b e l e , O e p k e , R i n s e , W y t s e ,
door achtervoeging van weêr andere verkleinvormen vrouwennamen
gemaakt: B a u k j e , J b e l t s j e (Y b e l t j e ), O e p k j e ,
R i n s k e , W y t s k e . Deze namen zijn dus oneigenlijk gevormd, bij
tautologie, door dubbele verkleiningsachtervoegsels. Zulk eene
opeenhooping van verkleinvormen komt zelfs wel voor als
samenkoppeling van drie achtervoegsels; bij voorbeeld: de
vrouwennaam R e i n s k j e , die ontleed wordt in R e i n (dat is de
mansnaam R e i n , inkorting van den eenen of anderen met Rein,
Regin samengestelden volledigen naam—R e i n g e r of
R e g i n g a r , R e i n d e r t of R e g i n h a r t ), in se, ke en je, alle
drie verkleiningsuitgangen, dus Rein-se-ke-je.
Wat zoudt Gij, mijn waarde Lezer! wel maken van den mansnaam
S j o e r d ? een naam die algemeen bij de Friezen in gebruik is, en
die heden ten dage als een bijzonder Friesche naam geldt. Dezen
naam immers, of eenen naam die er op gelijkt, vindt men bij geen
enkel ander volk in gebruik—meent Gij? Hij moet dus wel bijzonder
en eigen Friesch zijn!—Toch is dit niet het geval. Wel is de
hedendaagsche vorm slechts den Friezen eigen, maar
d’oorspronkelijke vorm van dezen naam is algemeen Germaansch.
Het Friesche S j o e r d is toch volkomen een en de zelfde naam als
het Hoogduitsche S i e g f r i e d , als het Oud-Hollandsche S i e v e r t
of S i e u w e r t , ’t welk een versletene vorm is van S i e g f e r t ,
S e g e v e r t . Onder den vorm S i e v e r t en S i e u w e r t komt deze
naam nog heden wel in noordelijk Noord-Holland voor. Daar zijn ook
de geslachtsnamen S i e u w e r t s z en S i e w e r t s inheemsch, die
zoon van S i e v e r t beteekenen. S i e v e r t of S i e g f r i e d
beteekent zege-vrede, overwinning door vrede, een naam van
schoone beteekenis. In het Oud-Friesch, tevens in het Oud-Noorsch
luidt deze naam S i g u r d , dat is: sige, zege of overwinning, en urd,
vrede. Dat hier urd = vrede is, bevreemdt hem niet, die weet dat de
letter v oorspronkelijk anders niet is als eene u, namelijk de u die
een woord of lettergreep opent. De Ouden verwisselden zoo wel in
geschrifte als in uitspraak de u en de v. Men schreef wt, en sprak
uut; de w is eene dubbele v of dubbele u. Van vrede, urede, tot urde,
urd is de stap uiterst klein, en niet grooter dan van het
Nederlandsche avond (evond, e-u-ond, i-u-ond) tot het Friesche joun
of jond (i-u-ond). In dit oude woord urd = vrede sprak men de u
natuurlijk op de Oud-Friesche, de Hoogduitsche, de algemeen Oud-
Germaansche wijze uit, als de hedendaagsche Hollandsche oe in
het woord boer. Dus Sigoerd. De g is eene letter die de oude Friezen
veelvuldig als j uitspraken, en de hedendaagsche Friezen met de
hedendaagsche Engelschen doen dit nog in sommige woorden. Het
Nederlandsche woord gift of [207]gave luidt in het Oud-Friesch als
jeftha, in het hedendaagsche Friesch als jefte, jeft; b.v. in het woord
sketjeft. Het Nederlandsche woord garen luidt in het Friesch als jern
(jen), in het Engelsch als yarn; het Nederlandsche gister in ’t Friesch
als jister of juster, in ’t Engelsch als yester (day). Een kromme hoek
van het oude Jacobiner-kerkhof te Leeuwarden heet: „het kromme
Gat.” Maar de oude Leeuwarders spreken dezen naam nog heden
uit als: „’t kroeme jat.” De hedendaagsche Berlijners, al zijn ze zoo
min Friezen als Engelschen, zeggen ook Jott in plaats van Gott, en
jans in stede van gans. Zoo zeiden ook de oude Friezen Si-joerd
voor S i g u r d (Si-goerd). Bij vlugge uitspraak in het dagelijksche
leven werd Si-joerd al spoedig tot S j o e r d . Het onderscheid is
geheel onwezenlijk en ter nauwer nood hoorbaar.
Zoo is van het oorspronkelijke S i g u r d der oude Friezen en Noren
het hedendaagsche S j o e r d gekomen, bij de Friezen; en het
hedendaagsche S j û r d (ook als Sjoerd uitgesproken) bij de
bewoners van de Färör, een Oud-Noorsche volksstam. De letter r is
in dezen naam, volgens de gewone uitspraak der Friezen, zeer zwak
en nauwelijks hoorbaar, en slijt er gemakkelijk uit tot Sjoe’d, Sjoed,
gelijk men gemeenlijk spreekt. De Oost-Friezen en de Friezen die
verder oostwaarts op aan de monden van Wezer, Elve en Eider
wonen, hebben die r niet enkel in uitspraak, maar ook in geschrifte
volkomen verwaarloosd, maar de oorspronkelijke u (in Hoogduitsche
uitspraak) hebben ze behouden in dezen naam. Van daar dat bij hen
de volle oude naam S i g u r d heden ten dage, in uitspraak en
geschrifte, als S i u t voorkomt; in patronymicalen vorm, als
geslachtsnaam, S i u d t z en S i u t z . Het Oost-Friesche S i u t luidt
volkomen zoo als het Sjoe’d der Nederlandsche Friezen, en de
geslachtsnamen S i u d t z en S i u t z als S j o e r d s ten onzent.
Het schijnt dat de Friezen van de 16e en 17e eeuw, die, zoo zij
geestelijken, leeraars of anderszins geleerden waren, hunne namen
zoo graag vergriekschten en verlatijnschten, nog min of meer
duidelijk den ouden vollen vorm en de beteekenis van den naam
S j o e r d kenden. Althans zij, die van H e t t e maakten H e c t o r ,
van D o u w e D o m i n i c u s , van Ts j i b b e T i b e r i u s , van
S i b b e l t s j e S y b i l l a , enz., maakten S u f f r i d u s van S j o e r d .
In S u f f r i d u s , S u f f r i e d is nog eene [208]aanduiding van
S i e g f r i e d = S i g u r d te herkennen. Nog heden is deze in
schijnbaar Latijnschen vorm verdraaide naam S u f f r i d u s in
sommige Friesche maagschappen in gebruik.
In oude oorkonden uit de jaren der 15e en het begin der 16e eeuw,
toen men de Friesche taal in Friesland ook nog in ambtelijke
geschriften bezigde, komt de naam der maagschap S j o e r d s m a
gewoonlijk als S i w r d i s m a en S i w r d e s m a , ook wel als
S i u w r d s m a voor. Bij deze spelling S i w r d , voor S j o e r d , komt
de samenhang met den Oud-Hollandschen vorm S i w e r t bijzonder
aan ’t licht. En tevens blijkt uit deze oude spelwijzen dat men
toenmaals de u, de v en de w als onze hedendaagsche oeklank in ’t
woord boer uitsprak.
Reeds is in dit opstel met een enkel woord vermeld dat van ouds her
bij de Friezen het gebruik bijzonder sterk in zwang was om de
namen te verkorten, te verdraaien, te verknoeien. Aan den eenen
kant zekere gemakzucht van de tonge, waardoor men lange namen
schuwde, en namen van twee of drie volle lettergrepen reeds te lang
vond—en aan den anderen kant de neiging der menschen, vooral
van vrouwen in ’t algemeen en van moeders in het bijzonder, om aan
de voorwerpen hunner liefde kleine, mooie, zoete, lieve naamkes te
geven (poppenammen, zoo als de Friezen, kepnamen, zoo als de
West-Vlamingen, kosenamen, gelijk de Duitschers zeggen), dit zijn
de oorzaken van het ontstaan dezer misvormde namen. Trouwens
deze neiging is niet slechts den Friezen eigen, maar algemeen
onder de volken van Germaanschen bloede verspreid. De
Hollanders die K e e s maken van den volledigen vorm C o r n e l i s ,
K l a a s van N i c o l a a s en M i e van M a r i a , de Vlamingen en
Brabanders die S e f k e maken van J o s e f , C i e s van
F r a n c i s c u s en T r e e s k e van T h e r e s i a , de Engelschen die
B o b maken van R o b e r t , D i c k van R i c h a r d , J a m e s van
J a c o b en B e s s van E l i s a b e t h , de Duitschers eindelijk die
F r i t z maken van F r i e d r i c h , K u n t z van K o n r a d en M e t a
van M a r g a r e t h a , die allen handelen in deze zaak juist zoo als de
Friezen die G o s s e maken van G o d s s k a l k , K e i van G e r r i t
(G e r h a r d ), en G e r t j e of in de wandeling G j e t , van
G e r h a r d a of van G e r t r u d a . Gelijk ook S i b e van S i b r a n d
(S i g e b r a n d ), W o b b e van W o l b r e c h t , P i b b e van
S i b b e l t s j e , enz. Maar Hollanders, Vlamingen, Engelschen en
Duitschers gebruiken zulke verkorte en verdraaide namen in den
regel slechts in de dagelijksche spreektaal, en geenszins in
geschrifte. Zij weten in allen gevalle wat de volle, oorspronkelijke
vormen van die verbasterde namen zijn. De Friezen in tegendeel
hebben die poppenammen ook in hunne schrijftaal overgenomen. Bij
hen hebben die vleinaamkes geheel de plaats der volle, oude
vormen ingenomen, en de oorspronkelijke beteekenis dier namen is
bijna volkomen verloren gegaan, althans uit de gedachtenis en
herinnering des volks, ten eenen male verdwenen.
3º. Op le eindigende: A m e l e , A n d e l e , B a r t e l e of B a r t l e ,
Bessele, Doekele, Eabele, Eagele, Ebbele,
Fokkele, Heabele, Hebbele, Hebele, Hessel,
I b e l e of Y b l e , I g l e , I k e l e , I m e l e , J a k k e l e , J i s l e ,
L y k e l e of L y k l e , N a m m e l e , O e b e l e , O k e l e , R e d l e ,
R i n g e l e , S i b b e l e of S i b b l e , Te a k e l e , W e s s e l ,
W i g g e l e , W o b b e l e , en nog anderen desgelijks.