The Logic of Consent: The Diversity and Deceptiveness of Consent as a Defense to Criminal Conduct (Law, Justice and Power)

The Logic of Consent analyzes the varied nature of consent arguments in criminal law and examines the confusions that commonly arise from the failure of legislatures, courts and commentators to understand them. Peter Westen skillfully argues that the conceptual aspect accounts for a significant number of the difficulties that legislatures, courts and scholars have with consent in criminal cases; he observes that consent masquerades as a single kind of event when, in reality, it refers to diverse and sometimes mutually exclusive kinds of events. Specifically, consent is used in law to refer to three pairs of contrasting kinds of events: factual versus legal, attitudinal versus expressive, and prescriptive versus imputed. While Westen takes no position on whether the substance of existing defenses of consent in criminal law ought to be enlarged or reduced in scope, he examines each of these contrasting events and analyzes the normative confusions they produce. Contents: Introduction. Part I Factual Consent: Introduction A core conception of consent: an attitude of factual acquiescence An expression of factual acquiescence. Part II Legal Consent: Introduction Offenses to which consent is a defense Prescriptive consent: an attitude or an expression? Prescriptive attitudinal consent Non-contemporaneous prescriptive consent Imputed consent. Part III The Consequences of Conceptual Complexity: Introduction The confusions of consent Conclusion Bibliography. Professor Larry Alexander, University of San Diego School of Law, USA "Peter Westen provides an admirably thorough and careful analysis of the different things that "consent" can mean, both within and outside the law - an analysis that is interesting in its own right, but also crucial if we are to avoid the confusions into which, as he shows, courts and theorists have so often fallen, and reach a better understanding of what "consent" should mean in the different legal contexts in which it matters." Professor Antony Duff, University of Stirling, UK Author Biography: Peter Westen is Professor of Law at the University of Michigan Law School, USA. This book analyzes the varied nature of consent arguments in criminal law and examines confusions that commonly arise from the failure of legislatures, courts and commentators to understand them.