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Dissent-Sensitive Permissions

Abstract

What makes it permissible to reach out to hold someone’s hand on a first date, or to rub a friend’s back when she is crying? This paper, a contribution to the special issue on Doug Husak, argues that conventions, context, and relationships play a role in shifting normative boundaries, such that the default rule becomes that it is permissible to touch someone until she dissents (thereby creating a ‘dissent-sensitive permission’). Part I of this paper focuses on convention-type cases, contrasting dates with the intentional touchings that occur on crowded streets or while playing football. Part II then addresses the range of normative justifications that track these different cases. Part III adds a different way that dissent-sensitive permissions can arise—from relationships and common ground. Part IV unearths the underlying rights-structure that my view presupposes and returns to the question of whether the theory I have on offer is one of consent. Part V argues that this approach, that these are alterations of permissibility, is superior to the view that conventions only impact the actor’s blameworthiness by rendering his belief reasonable. Part VI raises questions of whether our understanding of consent dictates our understanding of dissent.

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Notes

  1. Douglas N. Husak and George C. Thomas III, ‘Date Rape, Social Convention, and Reasonable Mistakes’, Law and Philosophy 11 (1992), pp. 95–126; see also Douglas N. Husak and George C. Thomas III, ‘Rape without Rapists: Consent and Reasonable Mistake’, Philosophical Issues 11 (2001), pp. 86–117.

  2. Husak and Thomas, ‘Date Rape’, supra note 1, at 102.

  3. Id. at 103.

  4. As done by the protagonist in Nick Hornby, How to Be Good (New York: Riverhead Books 2001).

  5. Accord Hannah Carnegy-Arbuthnott, ‘Trespass, Sovereignty, and Consent: Rethinking the Boundary of Bodily Integrity’ (manuscript on file with author).

  6. Michael Plaxton assimilates all of these cases into implied consent. Michael Plaxton, Implied Consent and Sexual Assault: Intimate Relationships, Autonomy, and Voice (Montreal and Kingston: McGill-Queen’s University Press 2015). One might think that I am merely pressing on consent and revocation as well. Cf. Tom Dougherty, ‘Fickle Consent’, Philosophical Studies 167 (2014), pp. 25–40.

    I am in accord with much of what Plaxton says about implied consent in the sexual assault context. I take my paper to be a more wide-ranging study, in the way that it examines the structure of different types of cases which he groups together, in aiming to ground this wider array of cases, and most importantly, in focusing on dissent-sensitivity. I also worry that funneling all of these cases into a kind of consent defined by an agreed-on set of norms may be too narrow. For example, he believes that it is legitimate for parents to use force against their children for the same reasons that it is justifiable for people to harm each other during hockey, as both sets of norms are legitimate. Plaxton, supra, at 75–77. But there are two questions here. First, the initial decision to engage in the practice (present for the hockey player but not the child) and second the question, vis-à-vis the practice, of whether the convention is morally legitimate. But the reasons that parents are allowed to use force against their children bypasses the question of consent altogether—it is simply a moral argument about why such consent is unnecessary.

  7. I owe this label to Victor Tadros.

  8. Alabama § 13A-6-60; Connecticut § 53a-65; Kansas § 21-5505; Ohio § 2907.06; West Virginia § 61-8B-1(6).

  9. See Judith Shulevitz, ‘Opinion: Regulating Sex’, The New York Times (June 28, 2015).

  10. Additionally, one might argue that these are simply overinclusive rules, and that, in criminal law at least, we should rely on prosecutorial discretion. But if individuals hold hands and married people touch each other in these ways all the time, why should the law deem what they do criminal? Why should the criminal law articulate a rule that no one in the population obeys? Isn’t that a bit too overinclusive? Must we rely on prosecutors? Accord Plaxton, supra note 6, at 5.

  11. To be sure, there are variations of the game, for instance the common variation to give money for landing on ‘Free Parking’ in Monopoly. For my purposes, whether one counts as ‘still playing football’ or ‘really playing Monopoly’ is neither here nor there if everyone agrees to the modification.

  12. Kenneth W. Simons, ‘Exploring the Relationship between Consent, Assumption of Risk, and Victim Negligence’, in John F.K. Oberdiek (ed.), Philosophical Foundations of the Law of Torts (Oxford: Oxford University Press 2014), pp. 272–291. Plaxton views all of these cases as instances of ‘implied consent’ which ‘involves acceptance of a set of norms according to which certain kinds of touching are permissible and legitimate.’ Plaxton, supra note 6, at 18.

  13. Questions of whether one is consenting to a package deal when one rides public transportation will crucially depend on options. There may be some instances in which is it more appropriate to group a subway with Sidewalk, and some where it is more appropriate to treat it like Football. There are a host of interesting questions at the boundary—is riding the DC metro instead of driving just something that one chooses to do? Or should it matter that one’s commitment to climate change, financial situation, or risks one is willing to take (in DC traffic) make taking the metro the ‘right thing to do’ and thereby have implications for the rights one has surrendered? If one does in some sense choose to ride the subway but it is the all-things-considered right thing to do, then, is the acceptance of the package overriding the right (see infra note 39), specifying the right, or applying a conditional liberty (see infra note 19)? Because nothing turns on these questions for purposes of my analysis, I will not explore these questions further.

  14. Plaxton, supra note 6, does an exemplary job of exploring this in the context of sexual intimacy. He focuses particularly on the availability of exit and voice. These should be of general concern to the legitimacy of a convention. If women who need to express a desire not to hold hands are ‘un-datable’ or excessively burdened, this should call the legitimacy of the practice into question, the moral force of the practice, and thereby the law’s willingness to accept that practice.

  15. Some readers may think the convention is more sensitive to signs that the date is not going well. If it is clear to a reasonable person that Bob isn’t digging Albert, but Albert is clueless, does the convention still apply? We might ask whether the reasonable appearance of dissent is what undercuts the convention. Arguably, this is a question for social science as to what ‘going on a date’ means and under what terms touchings remain permissible.

  16. Accord Carnegy-Arbuthnott, supra note 5.

  17. I have characterized these activities as ‘valuable,’ but we may think that individuals ought to be permitted to guide their lives in ways that are not objectively valuable. So, perhaps so long as the activity is not unjust, it need not be valuable. For the argument that sports like hockey can be valuable, see Plaxton, supra note 6, at 75–76.

  18. I thank an anonymous reviewer for helping me tease these cases apart.

  19. ‘A person has a conditional liberty to perform some action if (1) he has a privilege to perform that action (i.e. no duty not to act) and (2) if he performs that action, then he will lose some other claim or acquire some other duty.’ Gregg Strauss, Reconceiving Parentage (book manuscript on file with author), ch. 8.

  20. M. Beth Valentine, ‘Constructive ‘Consent’: A Problematic Fiction’, Law and Philosophy 37 (2018), pp. 499–521.

  21. Id.

  22. Accord Plaxton, supra note 6, at 78 (‘many complex social practices would be impossible if discretely contemporaneous consent was required on an ongoing basis’).

  23. Admittedly, even this can be unclear and set unclear norms. At one workshop, a questioner indicated that what he thought of as a first date, his wife thought of as a ‘meet up’ because they had used a dating website. I don’t pretend we have set norms for meet ups, or that there cannot be ambiguity in some cases as to whether something is a date. If the individuals are operating under different assumptions, then the convention cannot govern. The only question then is whether the agent acted culpably with respect to believing that the norm is in place and that his behavior was in fact authorized.

  24. If an agent is mistaken about whether the patient has signed on to the convention, the agent potentially lacks blameworthiness.

  25. Plaxton nicely explores ways in which exit and voice are essential to understanding the acceptability of sexual norms. Plaxton, supra note 6, chs. 6–7.

  26. This can ultimately lead to questions of whether consent can be given in exploitative situations. I do not intend to offer a theory of exploitation here. But the question of power dynamics and exploitation is pervasive and is not particular to conventions. Indeed, when A asks a pregnant woman if A might touch her stomach, the pregnant woman may feel significant social pressure to allow it.

  27. Accord Plaxton, supra note 6, at 171–172. Plaxton does not rely on the status ‘of being married.’ He does, however, seem to endorse a view that the couples are settling on their own conventions.

  28. An American ‘wet willie’ is wetting one’s finger with saliva and putting it in someone else’s ear.

  29. These cases then differ from cases where it is beneficial not to have to ask in real time (football, dating) because the idea is that asking would be to undermine the intimacy already inherent in the relationship.

  30. Accord Scott Hershovitz, ‘Book Review: The Search for a Grand Unified Theory of Tort Law’, Harvard Law Review 130 (2017), pp. 842–970, 958.

  31. Cf. Kimberly Kessler Ferzan, ‘The Bluff: The Power of Insincere Actions’, Legal Theory 23 (2017), pp. 168–202. Here, if there is a duty to protect the other person from wronging you, then according to the argument in The Bluff, the dissent would be ineffective.

  32. Admittedly, we may get the same intuitions from more straightforward consent cases as well, where the patient is well aware of the fact that the agent believes she has consent, such that the patient can easily rectify the wrongdoing simply by disabusing the agent of her belief. When you love someone, you may have a duty to rescue him from wronging you.

  33. Hershovitz, supra note 30.

  34. Carney-Abruthnott, supra note 5, at 3.

  35. Id. at 3, 7.

  36. Id. at 7, 8.

  37. Id. at 12.

  38. I don’t contend that, like the sidewalk case, we are always specifying the right. The sidewalk case is an instance of specification because of a just distribution of rights and duties. But there may be other cases where for ease of administrability, we adopt a default rule that respects the rights and desires of most people while being slightly overinclusive.

  39. American Law Institute, Restatement of the Law (Third) Torts: Intentional Torts to Persons, Tentative Draft No. 4 (April 1, 2019), p. 26.

  40. Plaxton, supra note 6.

  41. John Gardner, ‘The Opposite of Rape’, Oxford Journal of Legal Studies 38 (2017), pp. 48–70.

  42. Plaxton, supra note 6, advocates a rebuttable presumption under Canadian law ch. 10.

  43. Cf. Ferzan, supra note 31 (discussing sincere and insincere invocations of normative powers). David Archard also notes that Husak and Thomas elide the distinction between a convention that constitutes consent and a regularity upon which one may rely as evidence of consent. David Archard, ‘“A Nod’s As Good As a Wink”: Consent, Convention, and Reasonable Belief’, Legal Theory 3 (1997), pp. 273–290. Archard also notes that reliance on conventions that are not shared between men and women can be problematic. Id. Notably, my argument requires a shared understanding of the practice before the invocation of the convention can be held to be consent.

  44. Plaxton, supra note 6.

Acknowledgements

This paper benefitted from UVA Law’s Incubator Lunch Series and from presentation at the North American Workshop on Private Law Theory at Western University, the Sexual Consent workshop at the University of Warwick, the University of Pennsylvania faculty workshop, and the Surrey Centre for Law and Philosophy Hart Seminar. I owe particular thanks to Vera Bergelson, Mitch Berman, Karamvir Chadha, Nico Cornell, Ken Ehrenberg, John Goldberg, Debbie Hellman, Leslie Kendrick, Alex Sarch, Rich Schragger, Gregg Strauss, Victor Tadros, Patrick Tomlin, Beth Valentine, Alec Walen, Ben Zipursky, and an anonymous reviewer for Law and Philosophy. John Elliott provided excellent research assistance.

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Correspondence to Kimberly Kessler Ferzan.

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This paper benefitted from UVA Law’s Incubator Lunch Series and from presentation at the North American Workshop on Private Law Theory at Western University, the Sexual Consent workshop at the University of Warwick, the University of Pennsylvania faculty workshop, and the Surrey Centre for Law and Philosophy Hart Seminar. I owe particular thanks to Vera Bergelson, Mitch Berman, Karamvir Chadha, Nico Cornell, Ken Ehrenberg, John Goldberg, Debbie Hellman, Leslie Kendrick, Patrick Tomlin, Alex Sarch, Rich Schragger, Gregg Strauss, Victor Tadros, Beth Valentine, Alec Walen, Peter Westen, and Ben Zipursky.

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Ferzan, K.K. Dissent-Sensitive Permissions. Law and Philos 41, 397–418 (2022). https://doi.org/10.1007/s10982-021-09428-4

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