The Emotional Dynamics of Consent

摘要

Consent is one of the most powerful concepts known to the law; in particular, it can provide a defence in the criminal context by converting unlawful conduct to that which is not only lawful but even to be encouraged. Despite this, the task of formulating a general theory of consent in criminal law has not been an easy one, not least because of the different situations in which it operates. Given that consent fundamentally involves the subjective attitude of the person concerned to the conduct in question, this paper sets out to explore the dynamics of consent by considering a number of factors, including the way in which it operates as a defence to different crimes, the problems to which consent gives rise in the criminal context and the emotional factors which can influence someone to grant it. It is argued that the development of the law both from a theoretical and a practical perspective requires a more informed and nuanced concept of consent in terms of the emotional dynamics involved.