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PHIL 2170
Samantha Copeland

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 both • 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) o Could 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): o It is of no fundamental importance whether consent is explicit or tacit, if understoof that silence or inaction indicates consent, if there is a genuine opportunity for B to dissent, and if B’s dissent will have moral force.” (347)  In order for silence to count as a yes, agreement must be there  Have a genuine opportunity for dissent (still coercion)  Dissent must have moral force • Morally transformative (possibly, not prevented) – competence, coercion, concealment o Concealment – 3 ways we can be compromised, 5 ways we should ta
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