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PHIL 2170 Lecture Notes - Pirkei Avot, Fiduciary, Sexual Penetration

Course Code
PHIL 2170
Samantha Copeland

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Wednesday, March 23, 2011
Man Act – 1910
Alan Wertheimer
It is a mistake to think that sexual crimes are about violence rather than sex and that we
need to understand just why the violation of sexual autonomy is a serious wrong. (341)
Doesn’t want violence to take over what’s wrong with sex crimes
The question as to what behaviour should be prohibited through the criminal law will be
settled by moral argument informed by empirical investigation. Any attempt to resolve
that question through an inquiry into the ‘essence’ of consent or the conditions under
which we can use the word ‘consent’ will prove to be of only limited help. (342)
Conceptual problem won’t resolve the issue, legally and morally
Empirical – have to go collect data
Consent doesn’t do the work for us – the context does the work and decides a
good case from a bad case
No consent in sexual behaviours that with consent otherwise would be fine
Becomes criminal when consent is absent – it’s not consent or violence; could be
Moving from the private realm (consent was given) and the public realm (what
kinds of consent are legally legitimate)
“Consent is morally transformative; that is, it changes the moral relationship between A
and B and between them and others.” (342)
Consent might legitimate an otherwise illegitimate activity (eg. Surgery)
oCould be life saving or a mutilation
Consent provides a reason for others to not interfere (eg. Jackass)
Consent may give rise to obligations (eg. Promise)
Default consent – no assurance that what you’re doing is okay
We will not be able to go from a morally neutral or empirical account of consent to moral
of legal conclusions without introducing substantive moral arguments
Saying ‘yes’ might not be consent – coercion, social coercion (ex. economic
reasons, oppressive reasons), non-sexually ways of rating competence (ex. 18
years of age), impairment (ex. drunk)
Some token of consent (346)
Performative (cannot be assumed as default) ex. not saying no, being in a long
term relationship not simply assumed as a default (therefore treating the person
as an object)
Verbal or nonverbal, tacit or explicit (silence accepted as agreement):
oIt is of no fundamental importance whether consent is explicit or tacit, if
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