Clarifying Consent: Peter Westen's 'the Logic of Consent'

Abstract

This is a review essay of Peter Westen's "The Logic of Consent". I argue that Westen's book is philosophically informed, legally grounded, and well argued. It is a must-read for rape reformers, and yet it does not, itself, seek to reform rape laws. Rather, Westen's project is one of conceptual clarification. As Westen tells us in the Preface, we cannot resolve the justice of statutes regarding offenses of non-consent without first clarifying to ourselves and to others the diverse and potentially deceptive meanings of consent.

In the first part of the review, I canvass Westen's delineation of the four different conceptions of consent, and argue that Westen succeeds in tracking our diverse and deceptive usages of consent. I then set forth two examples of Westen's achievement in separating normative, conceptual, and empirical arguments that occur within Westen's broader conceptions.

The vast majority of Westen's arguments are devoted to individual debates within rape law, and thus, if "The Logic of Consent" lacks anything, it is a sense of perspective. In the second part of the review, I seek to place Westen's arguments in context. First, I argue that Westen's arguments demonstrate that consent is a species of choice, and its normative force is dependent upon its voluntariness. I contend that consent thus parallels our other assessment of choice within criminal law - choices by which we hold defendants criminally responsible. Secondly, I set forth the relationship between Westen's conceptions of consent. I argue that, with one exception, these conceptions do not compete; we simply conflate them. I then claim that the logical conclusion of Westen's own argument is that the law should jettison the one truly competing conception.

Keywords: criminal law, consent, rape