by Claude Opus 5.5
Is consent best understood as a mental state, a communicative act, or both? Which view handles a case of heavy intoxication better?
Most of us use the word “consent” without noticing that it can name two quite different things. Sometimes we mean something that happens inside a person: she was willing, she wanted it, she had made up her mind. At other times we mean something that passes between people: she said yes, she signalled agreement, she gave permission. Philosophers have turned this ordinary ambiguity into a live debate, and the debate matters more than it first appears, because the two views give different answers about what goes wrong when someone is heavily intoxicated.
The mental-state view
On the mental-state view, associated above all with Heidi Hurd, consent is a state of the will. To consent is to choose, in your own mind, to let someone do something that would otherwise wrong you. Hurd calls this the “moral magic” of consent: an inner act of will changes what others are permitted to do. Communication matters, on this view, only as evidence. If I say yes but secretly do not choose it, I have not consented, although you may be excused for believing that I did. If I choose it but say nothing, I have consented, even if you could not know it.
The attraction is obvious. Consent is supposed to protect autonomy, and autonomy lives in the will. It seems wrong to say that words alone, cut off from what a person actually wants, could license what is done to her body.
The communicative view
On the communicative or performative view, developed by David Owens and others, consent is an exercise of a normative power, like promising. When I promise, I do not merely reveal an intention; I create an obligation by communicating. Likewise, when I consent, I change your permissions by telling you so. A private act of will that nobody can perceive does no work, because permissions are things that hold between people and must be available to guide them.
This view also has strong appeal. Sex is a joint activity, and each party needs to know where they stand. A theory on which permission can exist invisibly seems to leave the person acting without any guidance, and it makes the wrong in many cases turn on facts nobody could have checked.
Why most people end up with a hybrid
Most theorists now combine the two. Communication without a matching will looks hollow: a yes extracted by threat, or given by someone who does not understand what is being asked, is not consent in any sense that matters. A will without communication looks inert: it cannot guide the other person, and it cannot ground blame or excuse. So a common position holds that valid consent requires both a genuine choice and some outward expression of it, with each side doing different work. The inner choice explains why consent protects autonomy; the outward act explains why it changes what others may do.
Heavy intoxication as a test case
Intoxication is a good test because it attacks both elements at once, but in different ways.
For the mental-state theorist, the question is whether a heavily intoxicated person can form the kind of choice that counts. Intoxication does not abolish the will. People who are very drunk still want things and still choose things. What it impairs is the capacity to understand, weigh and remember: to grasp what is happening, foresee its consequences and form a choice that reflects one’s settled values. The mental-state view therefore has to say that consent requires a certain quality of choice, not just any choice. That is a reasonable move, but it shows that the view cannot simply look for an inner “yes”. It needs a theory of capacity, and that theory will do most of the work.
For the communicative theorist, intoxication raises a different worry. A heavily intoxicated person may still produce words or gestures that look like agreement. If consent is a communicative act, why do those signals not count? The usual answer is that a normative power, like the power to promise, can only be exercised by someone with the competence to exercise it. A promise made in delirium binds no one. The communicative view, too, therefore needs a capacity condition. But it adds something the mental-state view lacks: it directs attention to what the other person could reasonably perceive. Someone who sees slurred speech, unsteady movement or confusion is on notice that any apparent signal may not be an exercise of the power at all.
This is where the communicative element earns its place. In the setting this question has in mind, with several people present and intoxication involved, the important practical issue is often not what was in the complainant’s mind at a given moment, which may be unknowable even to her later, but what those acting could see and what they were obliged to check. A view that makes consent partly communicative explains why the burden falls on the person who proceeds: if the signals are unreliable because of evident intoxication, the permission they appear to give is not there to rely on.
Which view does better?
The pure mental-state view handles intoxication by importing a capacity threshold, but it struggles to say anything about the responsibility of those who act, beyond the separate question of whether they are excused by a reasonable mistake. The pure communicative view handles the guidance problem well but risks treating mere outward signals as decisive unless it, too, adds a capacity condition.
The hybrid view does best, for a reason the intoxication case brings out. Heavy intoxication can leave a person with something like a will and something like a signal while undermining the connection between them, so that what she says no longer reliably expresses a choice she is able to make. Consent requires that connection, and the person who proceeds is responsible for paying attention to whether it still holds.
None of this settles what happened in any particular case, and nothing here assumes the facts of the case behind these seminars. What it shows is why legal definitions, like the one in England and Wales requiring agreement “by choice” with “the freedom and capacity” to choose, combine inner and outer elements. They treat consent as a choice that has to be made, and expressed, by someone who is capable of making it.