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The Scope of Consent
The Scope of Consent
TOM DOUGHERTY
1
3
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
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© Tom Dougherty 2021
The moral rights of the author have been asserted
First Edition published in 2021
Impression: 1
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above should be sent to the Rights Department, Oxford University Press, at the
address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Published in the United States of America by Oxford University Press
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British Library Cataloguing in Publication Data
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Library of Congress Control Number: 2020952644
ISBN 978–0–19–289479–3
DOI: 10.1093/oso/9780192894793.001.0001
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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).
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