In the New York Times last week there was an article on consent. The idea of consent, certainly in sexual relationships, has taken on a much greater prominence in recent years. Many of the cases, of course, involve activity after a lot of alcohol. But the writer of the article, a law lecturer at Michigan University, is more concerned with whether we think that consent, in any context, is invalidated, simply disappears, where we have been persuaded to do or not do something as a result of a lie. Obviously there are implications for the law if we think that consent to actions based on a lie should automatically be wiped off the record, rather than simply giving rise to a remedy. This research was conducted amongst samples of people apparently representing society as a whole. It consisted of presenting (fictional) scenarios to the interviewees for them to judge. The examples given in the Yale Law Journal, which is behind the NYT article, are constructed so as to present the story as unambiguously as possible - the person asking for consent is lying and the person asked for that consent would supposedly be absolutely determined not to give consent if he or she knew the truth. Surprisingly to the researcher, most people, in all the circumstances portrayed, decided that consent was still consent even though fraud had been deployed to obtain it.

We need to bear in mind that the people responding to the survey questions were not legal experts, but a cross-section of society. So then, the main questions put to them were:

1.    People are asked (and paid) to participate in tests of their maths ability. The researcher lied when he said that it was part of a study into Alzheimer's, when in fact it was to determine what what gender bias there was in mathematical ability.

My comment: Hardly a life-changing activity and so those asked about the question of consent may be unlikely to treat it as a very serious matter;

2.    A man with illegally bought arms stowed under his bed is asked to give consent to a police search of his house on the basis that they were looking for drugs, when in fact they were looking for illegal arms.

As he is aware of what the police might find, regardless of their stated purpose, giving consent to a search implies the man concerned is both an idiot and a criminal – so probably not much sympathy from those responding as regards his consent;

3.    Someone in need of surgery consents to undergo it based on a misrepresentation by the surgeon that she will be able to recover the cost from her insurers.

She gets the desired advantage from the surgery, but is left with a bill. However, surely most people would believe that she could then refuse to pay/pass the bill on to the surgeon making the false representation and so it’s difficult to see consent as a significant factor;

4.    A seller states falsely that the his house has no problem with termites.

There is a benefit to the buyer of owning the house, and the inconvenience of moving out if the contract were voided. There is a right to sue the seller for the cost of sorting out what is a real but not insuperable problem. Then there is the matter of why anyone would rely on such an assurance, rather than having a survey carried out.

5.    Consent given to sexual relationship by a woman on the basis that the man is free to marry.

Participants in this survey might think that peoples’ stated criteria are somewhat flexible when it comes to affairs of the heart - presumably we are intended to think that the woman fancied said man and not that she was e.g. marrying him for his money.

So then, altogether I’m not very convinced that the study was as well designed as the researcher obviously believes.

But I think that the whole idea is confused. It is true that lawyers say that fraud vitiates consent. The writer of the article, however, takes this further and invites the participants in the survey to ask themselves if, by reason of the fraud, the consent given was not in fact a consent. That however is to confuse what lawyers may regard as how the facts should be looked at, as opposed to what has actually happened. We categorise the picture we create in this way as a legal fiction, not an alternative reality. Clearly, the majority of survey participants were quite correct to consider that consent had been given. It had. Deeming does not turn a yes into a no. But this literal approach does not mean that there are no consequences. A finding of fraudulently induced consent enables us to look at what would have been the case if consent had not been given, and so allow the person deceived the right to be recompensed. So then, the survey is based on a fallacy – a red herring - that fraud does actually convert a consent into non-consent, as opposed to being able to look at what remedy should be given as a result of the fraud. Indeed, in the case of any contract based on a fraudulent misrepresentation, it is equally open to the person misled to decide not in fact to regard it as void, if it gives him some advantage to continue with it, but instead to affirm its validity and sue for the loss induced by the misrepresentation. Unsurprisingly, at least to me, the respondents saw the circumstances put to them in a much more literal light than that proposed by the researchers.

We then go on to the next question. What should be the consequence for fraudulently inducing consent in sexual relationships? Traditionally, of course, rape has been defined as an act which entailed force, whether threatened or actual. Do we now want to widen the definition to include all sexual relations founded on a lie and so ‘lack of consent’?  It could fill up the gaols. But if not all lies, then how great must the lie be? Even though not rich enough to buy an Aston Martin, if someone hires one for a month, so giving the unstated impression that he is rich, and succeeds in seducing the woman of his dreams, is he guilty of rape? The author correctly points out that even if people believed that sex-by-deception violates sexual autonomy, they might nonetheless resist criminalisation for reasons that have little to do with consent, such as insurmountable evidentiary hurdles or fear of government intrusion into private matters. And I would add that, quite rightly, we do not normally make ad hoc changes to well-known definitions of serious crimes based on somewhat abstruse philosophical reasoning. Laws against crimes have to be clearly defined and command the consent (that word again) of the people and so our parliamentarians, rather than clever arguments by lawyers.

So then, I’m not quite sure where all this gets us. I suppose it tells us that the framers of surveys, however hard they try, aren’t going to be able to propose scenarios which cannot be reinterpreted in order to fit our personal experiences of life. Instead, we will imagine how things would be in the circumstances proposed. It also tells us that those responding to surveys don’t show themselves to be very receptive to legalities or other artificial constructs. Which all takes us back to similar thought experiments based on switching points to divert the trolley down another line or pushing a fat man off a bridge to stop the trolley in the first place. As we have discussed before, we automatically take into account what the researchers would regard as extraneous factors - would I subsequently be tried for murder or would the fat man fight back and push me off instead? I’m not convinced therefore that this type of approach to establishing principles as to how we should act – our morality - is proving to be very useful. And this is probably because of the researchers seem always to take extremes of behaviour - the hard cases, which make bad law - to try to understand better our more everyday moral conduct. But the truth is that we don’t think about our morality in that degree of detail or even require total consistency in our own thinking, and so such an approach is inherently very unlikely to work.

Paul Buckingham

8 March 2021