Sexual Consent without Passivity
-
Tom Dougherty
Abstract
In “The Opposite of Rape,” John Gardner defends two central claims. The first claim is that consent is not necessary for morally permissible sex and the second claim is that giving consent pride of place in sexual offence policy has the unwelcome consequence of reinforcing sexist ideology. Gardner’s arguments for both claims rely on what I call the “Passive Consent Thesis” which is the thesis that “if A gives consent to B in a sexual encounter, then A is passive and B is active in the encounter.” Gardner argues that if sex that is good in a key respect, then they engage in joint sexual activity that is free of this asymmetry of agency. Building on work by Karamvir Chadha, I respond that even if someone is passive with respect to the action to which they consent, they can still be active with respect to a different action that they perform themselves. Consequently, I maintain that two people can give each other consent while engaging in joint sexual activity.
Acknowledgment
Since this essay was the basis for the presentation that I was invited to give on “The Opposite of Rape” in the panel “From Personal Life to Private Law: A Celebration of John Gardner’s Jurisprudence,” which was the Section on Jurisprudence and Torts and Compensation Systems Joint Program at the 2021 The Association of American Law Schools (AALS) Conference, I would like to thank the organizers and participants of this program and conference. For helpful discussions and feedback, I would like to thank Karamvir Chadha, Michelle Madden Dempsey, Kimberly Kessler Ferzan, John Goldberg, and Scott Hershovitz.
© 2021 Walter de Gruyter GmbH, Berlin/Boston
Artikel in diesem Heft
- Frontmatter
- AALS Torts Panel
- Foreword: From Personal Life to Private Law: The Jurisprudence of John Gardner
- Taking Responsibility Personally: On John Gardner’s From Personal Life to Private Law
- Sexual Consent without Passivity
- Research Articles
- Form and Substance in the “Private Law” of Torts
- Re-imagining the Dignitary Torts
- Reconstructing Malice in the Law of Punitive Damages
Artikel in diesem Heft
- Frontmatter
- AALS Torts Panel
- Foreword: From Personal Life to Private Law: The Jurisprudence of John Gardner
- Taking Responsibility Personally: On John Gardner’s From Personal Life to Private Law
- Sexual Consent without Passivity
- Research Articles
- Form and Substance in the “Private Law” of Torts
- Re-imagining the Dignitary Torts
- Reconstructing Malice in the Law of Punitive Damages
