The problem of what constitutes consent is perhaps one of the hardest questions to answer. Can you consent when drunk? Is a nod enough to register consent? Should it be more explicit? I’m going to argue that, on the most fundamental level, implicit consent is consent proper or put another way, consent can be implied given that there a reasonable belief that the partner’s behaviour indicates consent (i.e. they reciprocate behaviour). The exception to this rule is when you directly intend to take advantage of another.
The first immediate comment, before I begin, is that I am only dealing with cases where the opportunity to consent or not consent is present. The normal epitome case – forcibly assaulting someone on the street – never gives them the option to consent. So this, of course, is immediately non-consensual.
What do I mean by implied consent? There are two ways of viewing consent here. The first is explicit, literally saying ‘I do’. But, in reality, this is not consent in most cases. Rather, in most cases, the absence of anything which reasonably suggests consent is missing, alongside reciprocal behaviour (kissing, touching) implies consent is present. What kind of things would indicate lack of consent? Obviously, saying no. But also screaming, pushing away, your body going rigid or you stop kissing, touching etc. We ought not to go for an even weaker view that simply not showing non-consent is consent as this makes it seem like you need a justified reason not to consent and may feed into worries about female psychology and fear in sex.
Of course, though worth adding, implicit consent is unfixed: you can change your mind regarding consent (including during intercourse itself). This would require an expression or behaviour that breaks implied consent. This is because the judgement ‘consent is not present’ seems closely linked to judgements of rape and – especially in cases where consent was present, but one partner changes their mind – if this is not expressed in any way, it seems unfair to class this as rape (given that it still holds that the other party has a reasonable implied belief you are consenting). In the cases where you consent and then change your mind and express this by physical representation (i.e. stopping reciprocation), the onus falls on to the other party to ensure consent still remains given your behavioural sign which breaks the implicitness of the original consent. Note here that the expression need not be verbally shouting ‘stop’: there seems a genuine responsibility for both partners to read the behaviour of their partner both before, and during, intercourse.
An obvious problem for this account is deceived or misguided consent: when you get someone’s consent in a way that, if they were sober or aware of all the facts, they would not have consented. The typical example is sleeping with someone when they are heavily intoxicated. They “consent” but if they had have been sober they would not have done so. They wake up regretting the event, perhaps even angry. This has led some critics to argue that consent was not originally present and that a rape has occurred.
But the logic here is worrying. Say we meet at a club and I tell you I’m a professional footballer. Unbeknown to me, you sleep with me because you have the fantasy of sleeping with a professional footballer. You wouldn’t have slept with me otherwise. But I lied to you. And if you’d have known this you wouldn’t have slept with me. But does that mean you didn’t really consent? I’d say not, even though the consent contained deception. It certainly seems too strong to suggest that I raped you just because I lied to you about my profession.
There is a way to get around this, though. It’s about the intention of the perpetrator. In the lying example, any perhaps many drunk cases, it doesn’t seem true that someone is meaning to manipulate you into consenting: they may be trying to make your consent more likely but that doesn’t mean they are trying to ‘force’ your consent. But then, in other drinking cases, this would be true. If a man preys on drunk women in a club, while sober himself, it seems his intention is to look for a woman who will ‘consent’ without realising the deception at play. The important factor here then is the direct intention to influence someone into consent rather than the trickery itself.
But take another case: you know a man won’t sleep with you if he doesn’t use a condom. But you want to become pregnant. So you rip the condom and don’t tell him. Again, you’ve tricked him: he wouldn’t consent if he knew the condom was ripped. And your intention is to deceive him into sex. Yet is it true that, given this seems to fit his consent not being proper, that the women has raped the man here?
One option would be to say that ‘rape’ can come in stronger and weaker forms. But this approach might lead to a slippery slope. Can we really distinguish between different kinds of rape? Isn’t any infringement on one’s sexual autonomy equally wrong? I think, then, that we ought to conclude that this is rape, given the criteria I have outlined. A deception, with the direct intention of deceiving to achieve consent, is what constitutes rape in cases of misguided or deceived consent.
The suggestion here is that consent proper amounts to something a little more basic than some realise. To consent to sex requires an opportunity to consent, and implied consent as long as the other party is not intending to deceive you.