What Does ‘Consent’ Mean?
Files
Description
Stephen Schulhofer here addresses the foundational question what sexual consent means, that is, whether the inner mental state or observable behaviour matters. He begins with a survey of current American law and the discussions about the reform of the Model Penal Code, describing that little consensus on the meaning of consent can be found in positive criminal laws. In his own normative analysis, he defends the performative model against the alternative of attitudinal consent. From this starting point, it needs to be decided which kind of message is relevant: absence of ‘no’ or expression of ‘yes’? Schulhofer defends a contextual affirmative consent model, arguing that affirmative consent does not necessarily require verbal expression and that silence and inaction, depending on context, can be part of the relevant observable conduct.
Source Publication
Sexual Assault: Law Reform in a Comparative Perspective
Source Editors/Authors
Tatjana Hörnle
Publication Date
2023
Recommended Citation
Schulhofer, Stephen J., "What Does ‘Consent’ Mean?" (2023). Faculty Chapters. 1375.
https://gretchen.law.nyu.edu/fac-chapt/1375
