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3 Buff. Crim. L. Rev. 557 (1999-2000)
What Is Consent and Is It Important?

handle is hein.journals/bufcr3 and id is 563 raw text is: What Is Consent? And Is It Important? Alan Wertheimer* I. INTRODUCTION I am truly delighted to have the opportunity to comment on David P. Bryden's Redefining Rape. Like most academics, I am stingy with my praise. It is rare that an article knocks my socks off' and rarer still in the manner in which this article does so. For Redefining Rape does not attempt to break new theoretical ground. It does not argue for novel conclusions. Yet it startles. And it startles because Professor Bryden is consistently, thoroughly, and exceptionally sensible about a topic in which that virtue is in short supply. Because I find myself in substantial agreement with most of Professor Bryden's substantive claims, I have had to work hard to find the space in which to comment on his analysis. Fortunately, hard work pays off. Because I am a political philosopher, not a lawyer, I shall focus on a central theoretical claim of Bryden's article, namely, that consent is best understood as a subjective or psychological phenomenon. In what follows, I shall argue for three claims: (1) consent is best understood as a performative or action, not as a subjective phenomenon; (2) what constitutes valid consent is best understood as a moral issue and cannot be straightforwardly derived from any psychological or behavioral empirical phenomena; (3) whether we adopt a subjective or performative understanding of consent is not particularly important, so long as we bear in mind that what constitutes valid consent will always be settled by moral argument. To put the point slightly differently, I shall argue that the question what is consent? is much less important than it * Alan Wertheimer is John G. McCullough Professor of Political Science at the University of Vermont. He is the author of Coercion (1987) and Exploitation (1996) and is currently working on a book on consent to sexual relations.

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