New affirmative consent policies attempt to redress this problematic notion by insisting that lack of protest does not mean consent. Yet, in the case of sex, should it be? And, if it were, how would that change our notion of consent?īlack’s Law Dictionary (2 nd Ed.) defines implied consent as “the term used when a woman does not protest her wishes enough and the man thinks she has consented to sex.” Here consent, or lack of it, is defined in terms of resistance. Clearly, consent is not the same as desire. In this regard, in the best-case scenario, consent to sexual activity is not like consent to surgery, in that most people do not want to have surgery. The problems with conceiving of consent in terms of contracts are glaring when considering the case of sexual consent. In law, and in our everyday parlance, consent means to give permission for someone to do something in our two examples above, you consent to a medical procedure, on the one hand, and to a sexual activity, on the other. So while contracts may require consent as a precondition of their legal validity, consent cannot be reduced to a form of contract. But, as we know, these formal principles cannot account for dependency, inequalities, and oppression that are inseparable from our lived experience. The law assumes the formal autonomy, equality, and freedom of all individuals.

Contracts as they operate in law must assume individuals who freely choose self-binding agreements. There are deeper philosophical worries that take us beyond legal issues to questions of the very nature of our relationships with each other and ourselves.Īn essential element of contract law is that a contract is entered into voluntarily and all parties agree to its terms. These are merely some of the most obvious problems with the notion of consent as contract. In short, this equation reduces fluid activities and life experiences to moments artificially frozen in time. Third, consent as contract disavows the changing dynamics of individual identity, desires and wishes. Second, as others have argued, consent as contract assumes autonomous individuals extracted from social circumstances and power dynamics that are relevant to the agreement at hand. First, if consent is a contract, it is presumed to be a kind of off-and-on switch: it’s either given or not, with no gray areas in-between. Yet, in both of these cases, the notion of consent as contract is problematic. Contracts may require consent, but is consent a form of contract? From current informed medical consent policies to affirmative sexual consent polices, consent is being treated, explicitly or implicitly, as a form of contract.

Agreement 50 shades of grey contract