1. This discussion of tacit consent draws quite heavily from an account offered by Simmons, A. J. in Moral Principles and Political Obligation (1979), 76–81Google Scholar. The example involving the chairperson is also his. See also McGregor, J., Force, Consent, and the Reasonable WomanGoogle Scholar, In In Way, Harms. (J. Coleman and A. Buchanan, eds., 1994). 242–43.Google Scholar

2. Of course, there are some things about consent that come in degrees. From an epistemological point of view, we might be more or less certain that a particular act of consent took place, perhaps because the range of acts that are conventionally recognized as ways of consenting to a given activity has fuzzy borders. There may also be differences in the degree of voluntariness of two acts of consent. But, as long as both acts pass the threshold of “sufficiently voluntary,” both acts count (in that regard) as consent and one agent has not consented to a greater degree than the other.

3. For example, Donald Dripps adopts a normative conception of consent when he says that “consent is only the label we attach to causes of conduct deemed legitimate.” See Dripps, D., Beyond Rape: An Essay on the Difference Between the Presence of Force and the Absence of Consent, 92 Colum. L. Rev. 7 (1992): 1780–1809, esp. at 1787.CrossRefGoogle Scholar

4. I am using the term “offers” to include coercive offers, coercive threats, and combinations thereof. See Nozick, R., Coercion, in Philosophy, Science, and Method, Morganbesser, P. Suppes, and M. White, eds., 1969) at 449Google Scholar for a discussion of combination offers, such as “Have sex with me and I won't beat you today,” said to someone who is routinely beaten. See also Feinberg, J., Harm to Self (1986) Chs. 23 and 24 (pp. 189–268)Google Scholar for a full discussion of the difference between coercive offers and coercive threats, exploitation, and the implication of these, for assessments of voluntary consent.

5. Not every option that is possible (given the world as it is) is an option that is “open” to the agent It is open only if the agent's pursuit of it is protected by her right of autonomy, For example, suppose that Susan wants to retain an intimate relationship with Bob. The option of retaining the relationship is not open to her since she has no right to the relationship; Bob, obviously, may refuse to participate. The option that is open to Susan is the option to try to maintain the relationship (provided the means of trying don't violate Bob's rights), or, equally, the option to stay in the relationship as long as Bob is also willing. This difference is important when we consider offers such as “Have sex with me again or I will tell your spouse about our affair,” or “Have sex with me and I will give you the promotion you didn't earn.” (I borrowed the first example from Alan Wertheimer, whose discussion of it is included in the present volume.) Although the recipients in these cases would (let us presume) prefer to retain the secrecy or receive the promotion without having sex, the option to do so is not open to the recipients because their rights of autonomy do not include the right to force silence on another or the right to an undeserved promotion. As a result, the offers would not preclude consent because they do not close off options that were otherwise open to the recipient. For a discussion of blackmail (and the difficulty of making it criminal when what the blackmailer threatens to do is something he has a legal right to do) see Murphy, J., Blackmail: A Preliminary Inquiry, The Monist, at 2, 63 (04 1980)Google Scholar. Also, for an opposing view about cases such as the unearned promotion, see Schulhofer, S., Taking Sexual Autonomy Seriously; Rape Law and Beyond, Law & Philosophy 11:35–94 (1992) at 88.CrossRefGoogle Scholar

6. “Worse off” should not be understood absolutely but only with respect to options that were otherwise within the recipient's autonomous control. A person who is told, “You may have a ruby ring or a sapphire ring, but if you do not choose I will give you no ring at all” is not made worse off by this offer since, prior to the offer, she had no claim to be given a ring at all. But a person who is told, “I will take your ruby ring or I will take your sapphire ring, and if you do not choose which one I should take, I will take both” is made worse off. Similarly, with respect to the preceding note, the offer “Have sex with me again or I will tell your spouse about our affair” does not leave the recipient worse off than before the offer was made because, prior to the offer, the offerer had a right to tell the spouse about the affair.

7. This seems true even if we drop the requirement of force in the crime of rape and define rape as unconsented-to sexual intercourse. On the other hand, were we to try to retain a normatively laden conception of consent and address the present problem by drawing a line between those threats that seem to compel a person to choose the alternative involving sex (e.g., “Have sex with me or I will kill you”) and those threats that do not (e.g., “Have sex with me or I will kill your goldfish”), we risk covertly sneaking the force requirement back into rape, because anyone who was compelled to do something was thereby forced (internally or externally) to do it.

8. I have avoided using the word “coercion” in this discussion because there is much disagreement about its meaning (e.g., can offers that expand one's options be coercive?) and because there is a tendency to think that coercion precludes consent It is this latter point that is especially important to avoid since, were it true, and were rape defined as unconsented-to sexual intercourse (as I assume in the next section), a great many cases of sexual intercourse that do not seem to be rape would count as such. Among them would be agreements to have sex (1) when one is being blackmailed with a threat to expose a truth, (2) in exchange for desperately needed aid or money (unconscionable or not), and (3) in exchange for non-necessary but desired benefits, such as unearned entrance to medical school or an unmerited promotion.

9. Washington and Wisconsin require affirmative signs of consent See Remick, L.A., Read Her Lips: Verbal Consent in Rape, U. Pa. L. Rev. 141:1103–51 at 1114–5.CrossRefGoogle Scholar

10. Id. at 1111.

11. Id. at 1112.

12. See Estrich, S., Rape in Yale L. J., 95, 1087–1184.Google Scholar

13. Estrich discusses this argument but does not endorse it (id. at 162). Also, for a discussion and rejection of a similar argument involving perceived ambivalence in the woman see Schulhofer, , supra note 5, at 74Google Scholar. Schulhofer provides a convincing counterexample in which a patient's ambivalence about a proposed surgery would never be regarded as consent.

14. See Murphy, J.G., Women, Violence, and the Criminal LawGoogle Scholar, in In Way, Harm's (Coleman, J. and Buchanan, A. eds., 1994), 209–30, at 213.Google Scholar

15. Remick, , supra note 9, at 1124–8.Google Scholar

16. I am not making the more radical claim that any utterance of “No” is inconsistent with consensual sex and/or inconsistent with a reasonable mistake about consent. Words cannot be understood in isolation and “No”s directed at particular means of sexual interaction (and certainly “Oh no!”s) can be quite common in consensual sex. Moreover, one who says “No” might freely change her mind. My point here is the should-be-obvious one that “No” (or mild resistance) cannot itself be evidence of consent or teasonable mistake, and, when there is consent or reasonable mistake, it must be inferrable from something else. Since “No” is one of our paradigmatle ways to express dissent, however, its utterance creates a strong presumption against consent—one that likely can be overridden only by a clearer “yes” clearer because ambiguity would continue the presumption of nonconsent) and perhaps very overt actions, such as continuing to rip the other's clothes off, helping with the removal of one's own clothes, and placing the other's body parts where one wants them on one's own body.

17. Remick, , supra note 9. at 1121.Google Scholar

18. Remick, , supra note 9, at 1126Google Scholar. She adds (citing Kanin, E.J., Date Rape: Unofficial Criminals and Victims, 9 Victimology 95 (1984) at 103)Google Scholar that, as a result, the “burden of sexual misunderstanding ultimately resides, with the female and the consequence b a categorical denial of self-determination.”

19. Thus, for example, the fact that a jury failed to convict in a case in which a woman invited a man into her house and was subsequently raped does not itself show that the “courts apparently see that opening your front door to a man means that the vagina is open to his penis.” Powerful rhetoric cannot rescue a bad inference. (The quote is cited by Remick, but it belongs to Rathy Barry and is from a pamphlet called Stop Rape, as cited in Griffen, S., Rape: The Politics of Consciousness 72 (1986).)Google Scholar

20. Indeed, as Remick herself notes about the case in which a 22-year-old woman who was wearing a lace miniskirt without underwear and was abducted at lorifc point and repeatedly raped, the fact that the Jury acquitted the defendant “may have been more a result of the jury's opinion that the complainant deserved to be raped than of an actual finding of consent.” Remick, , supra note 9, at 1127.Google Scholar

21. I am not claiming that it would in fact be reasonable to view these behaviors as signs of consent if content were a mental state. Instead, I am making die weaker claim that only if consent were a mental state could it possibly he reasonable to view these behaviors as signs of consent.

22. These claims need to be understood outside the contest of a private language. Any particular couple may have developed a private language in which certain behaviors have been agreed to count as consent. Also, within a private language, some behaviors (such as putting on a spouse's favorite nightshirt) may be a nonverbal way of asking another whether he or she wants to engage in X as well as a way of consenting to X once asked.

23. Consider a woman who is sitting eagerly in the manager's office of an auto dealership holding a cashier's check for the price of a car she has test-driven four times. Until she signs her name, she hasn't consented to buy the car.

24. Remick, , supra note 10, at 1126.Google Scholar

25. Thus, Remick is mistaken when she argues that if we allow nonverbal consent, then, given that the state has the burden of proving nonconsent, one piece of evidence—one act that might reasonably be interpreted as an act of consent—would be enough to create reasonable doubt and, thus, preclude conviction. Instead, the state would have the burden of showing that it was not reasonable to infer consent in the situation. Since acts aren't evaluated in isolation, one particular piece of evidence wouldn't be enough to give reasonable doubt that it was reasonable to infer consent.

26. Surprisingly, Remick seems to disagree when she says that “a standard based on verbal behavior would emphasize that no matter what a woman does before or after a sexual encounter, the relevant question is whether or not she said ‘yes’ during it” (Remick, , supra note 9, at 1128).Google Scholar

27. Allowing and/or requiring the correction of mistaken inference does not return us to the requirement of active dissent Correction of mistaken inference requires that there first be an act that could reasonably look like an act of consent. The correction either shows that the act was intended for something else, or clarifies the limits of that to which one was consenting.

28. Schulhofer, , supra note 5, at 5SGoogle Scholar. Remick is aware of the counterintuitive nature of a strictly verbal standard of consent and seeks to repair it by allowing an affirmative defense of consent That is, although a man would be open to a charge of rape if he engaged in sexual intercourse with a woman in the absence of freely given verbal consent, he could defeat such a charge if he could establish beyond a reasonable doubt that the woman consented in nonverbal ways. Yet the counterintuitive nature remains, it seems to me. For, according to Remick, the man has still acted wrongly:

Although a rape has not occurred, a man acts at least negligently and perhaps recklessly or purposely when he fails to avail himself of the most unambiguous form of consent—verbal consent. Morally, a man is culpable for failing to obtain verbal consent whether his partner implicitly consented or not: the fact that his partner implicitly consented is more a matter of luck than a reflection of his intentions, (at 1128)