Tim Grant and Kerrie Spaul
Within the volume The Language of Sexual Crime (2007) edited by Janet Cotterill, Peter Tiersma published a thoughtful paper, The Language of Consent in Rape Law, focusing on the nature of consent in the context of rape and sexual crime. His paper begins with the description of a rape trial at the Old Bailey in London and from this starting point, Tiersma argues for the proposition that “Consent (at least in rape law) is essentially a mental state, not a speech act” (95). He also proposes a reformulation of the law on rape that attempts to shift the focus of the rape trial from the mental state of the victim to the mens rea of the accused.
In this brief paper we take issue with Tiersma’s contention that consent is in itself a mental state and argue that felicitous consent must be in some way communicated. For Tiersma the communication of consent is a matter of evidence of the mental state, whereas for us the communication is a necessary constitutive element of consenting. Such a communication may fall between a traditional performative speech act and a communicative behaviour, but drawing on the medical literature on presumed consent, we argue that felicitous consent requires some form of communicative act.
Tiersma’s criteria for consent as a mental state might be articulated thus:
¤ Consent may be voluntary, or (under coercion) involuntary. [Tiersma uses the example of robbery, in which involving the threat of violence is not consensual, contrasting this with cases of extortion, in which involuntary consent occurs when the goods are handed over.]
In contrast Cowart (2004) provides an extended discussion of consent as a speech act. Her briefest formulation (520) is intentionalist and contends that consent is
The giving of permission in response to a request by H to do X, that H does not have a right to perform without permission, but if granted will be performed by H.
Cowart disagrees with Tiersma in two important respects. First, she argues that although the request must be articulated through language, a consenting or refusing response might be made linguistically or through gesture or behaviour. There is, though, a further condition that any such behaviour needs to be a clear indication of permission or refusal. Second, Cowart (2004: 522) rejects the idea of involuntary consent, arguing that
if she is forced to give permission, especially in instances of coercion or threats, then she is not consenting, but either complying, obeying, surrendering or acquiescing (depending upon the specifics of the situation). However, it is clear that SHE IS NOT CONSENTING.
Tiersma’s argument that “consent can be used in either a descriptive or performative sense” rests on “the critical point that a person can consent without saying so” (91). He cites the adage that “silence is consent,” (91) which originates with Thomas More. In 1535 More was on trial for high treason and is said to have been asked why, when questioned, he failed to verbally acknowledge Henry VIII’s supremacy and authority over the Church. More’s response in Latin was qui tacet consentire videtur, he who is silent seems to consent (Simpson, 1993).
Tiersma’s argument does not rest upon Thomas More, but rather upon a contrast of “consenting” with “promising.” Promising, Tiersma argues, requires a verbal component, whereas consenting does not. Thomas More’s situation, however, is instructive in the consideration of consent. More was questioned, an adverse inference was drawn from his silence, and his defence was thus harmed. As Kurzon (1998) argues, silence in response to a question is strongly marked as intentional and will typically be interpreted as containing some meaning. Silence in practice may be an inadequate or dangerous response to prosecutorial questioning because it does not constrain any potential meaning and allows prosecutors to select the most damaging possible interpretation available to them.
We agree with Tiersma that persons can consent without saying so, but would argue that some kind of communication of their consent is necessary, and this might amount to something like a non-verbal speech act. In medical contexts, silence in the right circumstances may be constructed as presumed consent. For example, if a medical professional requests a blood sample, an individual might respond by silently rolling up her sleeve and offering her arm. Such a behaviour is communicative in the sense that it helps the practitioner understand the meaning of the patient’s silence and it will be understood as indicating consent. Presumed consent in medicine cannot be made where there are no grounds to believe a patient might consent. Pierscionek (2008) argues that medical-legal “presumption” is “an inference that is made on available facts or evidence.” The evidence one provides when asked for blood is communicative behaviour, and so rolling up one’s sleeve is unproblematically taken to indicate consent. If, in contrast, one just thinks her consent, sitting silently and without gesture, that is to say, if a person keeps her consenting mental state private from the medical practitioner, then there is no evidence or legal ground upon which to presume her consent. Further to this we would argue that this individual has not consented; uncommunicated consent is no consent at all, but just as speech can be acts, so, too, behaviours can be communicative.
As we’ve seen, Tiersma and Cowart offer differing contrasts in arriving at their positions on consent: Tiersma contrasts consenting with promising, Cowart (in her consideration of coercion) contrasts consenting with “complying, obeying, surrendering or acquiescing” (522). We would argue that complying, obeying, surrendering, or acquiescing may not require communication on the part of the individual but that in both consenting and promising the communicative aspect is a crucial element.
We are in agreement with both Tiersma and Cowart that “consent” is reactive to another’s plan or proposition, but would add a further observation. Consent, we would argue, is socially required only when there is some likelihood of it not being given. In a dating situation some of the potential awkwardness can be explained by the fact that neither party can be sure of the other’s response to a sexual advance. Each party believes there is a reasonable possibility that their approach may be turned down and privately knows that such a response is within the range of socially expected responses. In the medical domain treatments may be invasive and the law around medical consent is based upon the autonomy of patients; the act of asking for consent presupposes that some proportion of competent patients is expected to refuse a recommended treatment. In broader contexts, consent is not at issue unless there is some likelihood of refusal. Consent is an expression of a real choice between permission and refusal of someone else’s plan and as this choice involves an external agent, it requires an external expression of which option has been selected. On this ground also, we argue that unexpressed or uncommunicated consent is not consent at all, but we continue to maintain that such an expression may be behavioural.
The contrasts between the positions here can be illustrated through consideration of three possible assertions1: