by Claude Opus 5.5
Is consent a mental state (Hurd), a performative exercise of a normative power (Owens), or a hybrid? Which account best explains why intoxication can defeat consent without defeating agency altogether?
The intoxication case is a good test of theories of consent because it produces a combination that each pure theory struggles to describe. A heavily intoxicated person is still an agent. She acts, chooses, wants and speaks. Yet we judge that her consent can fail. A satisfactory account must explain how consent can be defeated while agency survives, and must locate the defeat in the right place.
Hurd: consent as a mental state
Heidi Hurd’s “The Moral Magic of Consent” argues that consent is a subjective mental state: the intention, or choice, that another person do something that would otherwise wrong one. Its normative effect, the “magic” of turning a trespass into a permitted act, comes from its being an exercise of autonomous will. Communication is evidential. A token of consent without the state is not consent; the state without a token is. Larry Alexander has defended a similar view.
On this account intoxication defeats consent only by undermining the relevant mental state, so Hurd must say what that state requires. A thin reading, any present-tense willing, cannot do the work: intoxicated people will things. A thick reading, a choice informed by understanding and rational evaluation, is needed. But then the account’s explanatory weight shifts from the mental state as such to its quality conditions, and those conditions are not obviously mental-state facts at all. They are facts about the person’s capacities, which are dispositional and counterfactual. The mental-state view thus explains the intoxication case only by adding a capacity theory that does most of the work.
There is a deeper difficulty. The mental-state view locates the defeat of consent in the person’s interior and thereby makes it, in principle, opaque to the other party. That is attractive as an account of whether the complainant was wronged, but it leaves a gap when we ask what the other party owed her, which is the question criminal and disciplinary processes are usually asking.
Owens: consent as a normative power
David Owens, in Shaping the Normative Landscape, treats consent as the exercise of a normative power, comparable to promising. We have normative interests, interests in being able to change our own and others’ rights and obligations at will, and consent serves those interests by allowing a person to waive a claim through communicating an intention to waive it. The communicative act is constitutive, not evidential: like a promise, consent is done by being communicated.
The power view explains well why consent must be addressed to someone and why it changes their permissions. It also gives a natural account of intoxication. A normative power, like a legal power, has competence conditions. A promise made in delirium does not bind, not because the promisor lacked a mental state, but because he was not then competent to exercise the power. Intoxication can defeat consent by removing competence, while leaving agency intact: one can act, and even communicate, without being in a position to exercise a power whose point is to serve one’s normative interests.
The question is what fixes the competence condition. Owens’s interest-based approach suggests an answer: the power exists because it serves our interest in shaping our normative situation, and it is competently exercised only when it can serve that interest, which requires a degree of understanding and control. That makes the competence threshold principled, but it also makes it substantive, and it does not settle where the threshold lies.
Hybrids
Hybrid views, including Tom Dougherty’s account of consent as communication backed by the relevant attitude, and Peter Westen’s distinction between attitudinal, expressive and prescriptive senses, hold that valid consent needs both a suitable mental state and its expression. The hybrid explains why neither a bare token nor a hidden willing is enough.
For intoxication, the hybrid’s advantage is diagnostic. Intoxication can sever the link between attitude and expression, so that what the person says no longer reliably expresses a competent decision. The defeat lies neither in the absence of willing nor in the absence of a token, but in the failure of the token to be an exercise of a capacity that the person, at that moment, does not have.
Which explains the intoxication case best?
The power view and the hybrid converge here, and both improve on the pure mental-state view. The key move is to treat capacity as a condition on the exercise of a normative power, rather than as a feature of a mental state. That explains the target phenomenon directly. Agency is the ability to act for reasons; competence to consent is the ability to exercise a specific normative power in a way that answers to its point. The second can fail while the first persists, much as a person can act intentionally while being unfit to make a will.
The power view also explains the bilateral structure that matters in practice. Because consent is communicative, the recipient is a participant in the exercise of the power and can be required to attend to its competence conditions. Evident intoxication is a defeater that the recipient is in a position to perceive. The mental-state view can mimic this only by adding a separate theory of reasonable belief.
A remaining worry
One residual worry is that the power view makes consent too formal, treating a deeply wanted encounter as invalid because of a technical incompetence. The answer is that competence conditions for consent are not technical. They track whether the person can, at that moment, actually serve her own interests through the exercise of the power. When she cannot, the moral reason for honouring her token, respect for her authority over herself, is absent, even though she remains an agent whose other choices still matter.
In seminar, a productive comparison is with other powers: promising while intoxicated, signing a contract, making a will. Asking which conditions transfer, and why sexual consent might set the bar higher or lower, usually exposes students’ implicit theory of what consent is for.