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“Jan, was Pat too drunk to consent?”

If “consent” and “decision” were synonymous the answer to the two questions would always and unquestionably be the same. And yet…

Well, in current British law, the two questions mean the same thing, so in that context consent and decision are synonymous.

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“Jan, did you consent to sex with Pat after the kegger?” “I don’t know… I guess I could have been more clear about it… I blame myself!”

Gee, there was a “gray area” around here just a minute ago!

The grey area moved, if there was one to start with:

“Jan, did you make a decision to have sex with Pat after the kegger?” “Not really, I mean, I could tell what was on Pat’s mind and just sort of let it happen because I was feeling that way too, and it was fun.” Now, in legal terms that still makes it possible to bring a charge of rape, and in ethical/moral terms Pat’s behaviour still qualifies as rape because there was no clear signalling of consent by Jan, but it still qualifies as a grey area. It is just that it is a grey area that does a lot less harm.

Consider also, if Jan is saying “I don’t know… I guess I could have been more clear about it… I blame myself!” then we are not talking about consent here. We are talking about signalling lack of consent, which should not be the criterion in the first place (which is why in legal and moral terms, the example for the relocated grey area would result in prosecution, even though in that case, in Jan’s heart there was consent). it is worth noting that there is a distinction between “did you consent…?” and “did you give your consent…?” The first talks about an internal state (in fact, it talks about my “relocated grey area” situation, where Jan doesn’t make a decision, but consents to what Pat appears to want to happen), while the second talks about a transaction between the two people. I think it is true that there is a grey area in people’s conceptions of that transaction, but the issue is one of clarity, not of decision: if “I could have been clearer” in saying no, then Jan definitely didn’t say clearly “yes”, so consent was not given. And that goes in my “relocated grey area” example too – since Jan didn’t clearly say “yes” or “I want this” (except maybe until after sex had started) then consent was not actually given even if it was there in the first place.

Consider finally: “Jan, did you make a decision to have sex with Pat after the kegger?” “Yes, but Pat didn’t bother to ask, and just did it to me when I wasn’t ready to yet and hadn’t consented.” Imagine Jan telling friends, “I’m going to have sex with Pat tonight!” excitedly, but then saying to the same friends the next day “Pat raped me!” and I think the problem with focussing only on the decision becomes clear.

[It’s not on the decision, and definitely not on the decision to consent. Which, as I’ve said, would just be begging the question. And it’s not like consent is ever just a coupon to be redeemed later, no questions asked. In fact that’s the whole point of my problem with overemphasizing consent-the-result over the person who makes it. In other words we’re actually on the same page here. Thanks, SE. —fl]