Citation

Chadha K. Law Philos. 2021; 40(3): 335-359.

Copyright

(Copyright © 2021, Holtzbrinck Springer Nature Publishing Group)

DOI

10.1007/s10982-020-09400-8

PMID

unavailable

Abstract

There are two distinct ways for someone to place conditions on their morally valid consent. The first is to place conditions on the moral scope of their consent--whereby they waive some moral claim rights but not others. The second is to conditionally token consent--whereby the condition affects whether they waive any moral claim rights at all. Understanding this distinction helps make progress with debates about so-called "conditional consent" to sexual intercourse in English law, and with understanding how individuals place conditions on their morally valid consent in other contexts.

An English court recently had to decide whether to extradite WikiLeaks founder Julian Assange to Sweden to face rape charges. Discussing Assange's interactions with a woman known as AA, the court said, "If AA had made it clear that she would only consent to sexual intercourse if Mr Assange used a condom," then a jury could hold that "there would be no consent if … he did not use a condom".Footnote 1 Subsequent legal judgments appear to suggest that it is possible for someone to consent to sexual intercourse on the condition that their partner does not ejaculate inside them,Footnote 2 or on the condition that their partner is a cisgender man.Footnote 3 According to the Crown Prosecution Service, these judgments suggest a "developing concept of conditional consent". But the CPS notes the "absence of clear authority as to how far the concept extends".Footnote 4 Legal commentators likewise observe that the courts must now address "whether the concept of conditional consent ought to be extended to other situations"...

Language: en