The Logic of Consent by Westen Peter;Sarat Professor Austin D.;

Author:Westen, Peter;Sarat, Professor Austin D.;
Language: eng
Format: epub
Publisher: Taylor & Francis Group

Chapter Six

Non-contemporaneous Prescriptive Consent

We have focused thus far on instances of prescriptive consent on a subject S’s part, whether attitudinal or expressive in nature, that are contemporaneous with the conduct x to which S is prescriptively consenting. S’s prescriptive attitudinal consent to x is ‘contemporaneous’ with x when (i) S factually consents to x by subjectively choosing x as that which she prefers for herself under the circumstances or that about which she is so indifferent as to be willing to delegate its occurrence to others; (ii) S makes her subjective choice under conditions of voluntariness sufficient to enable her to take responsibility for her choice; and (iii) S makes her subjective choice at the very time x occurs. In turn, S’s prescriptive expressive consent to x is ‘contemporaneous’ with x when (i) S factually consents to x by expressing that she is subjectively choosing x as that which she prefers for herself under the circumstances or that about which she is so indifferent as to be willing to delegate its occurrence to others; (ii) S expresses her choice under conditions sufficient to convey that her choice is voluntary; and (iii) S’s expression conveys that she is acquiescing up to and including the time at which x occurs.

Frequently, however, in lieu of factually consenting to conduct at the time it occurs, people factually consent to conduct only prospectively, or only retrospectively, and not contemporaneously. The most common examples of such prospective and retrospective factual consent are changes of mind. Thus, people choose beforehand, whether subjectively or expressively, to engage in conduct at a future time at which they expect the conduct to occur; and, yet, as the time approaches, and as people learn more about the conduct and about themselves and their values, they change their minds and reject the conduct in mind or expression. Or conversely, people reject conduct at the time it occurs, and yet, as time passes, they regret their prior disavowals and come to embrace the conduct as something they are glad occurred.

Such instances of prospective and retrospective acquiescence are commonplace. They are also true instances of factual consent, because they are instances in which persons truly choose conduct—albeit prospectively or retrospectively—as that which they prefer for themselves under the circumstances they envisage or that about which they are so indifferently as to be willing to delegate its future occurrence to others. Yet, with respect to whether such instances of factual consent are also valid as defenses to crime—that is, with respect to whether factual acquiesence can ever constitute prescriptive consent—prospective and retrospective factual consent differ significantly from contemporaneous factual consent. For as a legal matter, Anglo-American criminal law tends strongly to privilege a subject’s contemporaneous assessments of her interests over her non-contemporaneous assessments.1 Thus, other things being equal, in the event of conflict between contemporaneous consent on the one hand, and prospective or retrospective non-consent on the other, the criminal law tends to privilege contemporaneous consent.2 Similarly, other things being equal, in the event of

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