False Beliefs and Consent to Sex

Publication details

Dsouza, Mark (2022) 'False Beliefs and Consent to Sex', The Modern Law Review, https://doi.org/10.1111/1468-2230.12738

Summary

When, if ever, do mistaken beliefs render sexual activity non-consensual despite a person's seeming consent? I suggest that existing answers can be improved upon by paying due attention to two things, (1) that valid consent is often given through exercises of sexual autonomy that are, to different extents, unreflective rather than considered; and (2) that a belief can define both the object of consent, and a precondition for it. I propose that where V putatively consents to sexual activity with D, the falseness of a belief that V holds renders the sexual activity non-consensual when it means either that what happened to V fell outside the (consideredly or unreflectively selected) boundaries of the object of V's consent, or that a precondition that V consideredly set for her consent, had not been met.