Date of Award

Spring 2022

Document Type

Dissertation

Degree Name

Doctor of Philosophy (PhD)

Department

Philosophy

First Advisor

Kagan, Shelly

Abstract

Consent is morally transformative and suffuses our everyday moral and social lives. Valid consent makes the difference between permissible sex and rape; between a medical exam and assault; between entering a person’s home and trespass; between an economic transaction and theft; between contact sports and physical attacks; between the sharing of information and invasions of privacy. Moral philosophers writing on consent take themselves to capture and illuminate these ordinary practices, while claiming to do justice to commonsense claims about the circumstances under which consent is valid. Specifically, they purport to explain the way that ordinary consent can be morally transformative by offering theories of the kind of autonomous agency that is thought to underlie these ethical transformations. Moreover, these theories are then intended to capture what are taken to be commonsense distinctions between cases of valid consent, on the one hand, and invalid consent, on the other. Yet this philosophizing is normally done with little or no empirical investigation of the nature of this practice or the nature of the autonomous agency that is claimed to be crucial in justifying it. How do real agents in fact come to give consent? In what sense can their decisions be said to be autonomous? And to what extent do moral theories cohere with how consent is in fact conceived in ordinary reasoning? In this dissertation, I bring moral philosophy together with careful examination of relevant experimental psychology in order to illuminate the ethics of consent. In the first part of the dissertation, I show that we can reconcile the philosophical idea that consent must be autonomous with empirical findings that show that real decisions to consent are variable and influenced by trivial factors, without giving in to sweeping skepticism or revisionism about ordinary practices. Specifically, I examine challenges to the standard view of consent based on findings that decisions to consent are subject to framing effects. I argue that such challenges are best understood in terms of a claim about the extent to which frame-dependent consent decisions are autonomous. I propose a model of decision-making that captures how suboptimal decisions can be sufficiently autonomous for valid consent. Subsequently, I analyze arguments for the view that framing effects threaten the sufficient autonomy of consent. On philosophical grounds, I argue that being dependent on framing does not entail that consent is invalid. Furthermore, drawing on empirical work, I argue that frame-dependence does not make it likely that consent is invalid. Instead, variability in an agent’s decision to consent due to the influence of framing is compatible with sufficiently autonomous decision-making based on a reasonable weighting of the agent’s own values. In the second part of the dissertation, I report three studies showing that the philosophical idea that autonomy is importantly linked to the validity of consent is also reflected in the folk concept, but that the kind of autonomy presupposed by the folk concept is much less demanding than many philosophical treatments take it to be. Specifically, while philosophical accounts assume that consenter’s must exercise their autonomy in order to give valid consent (the “Exercised Capacity” view), the folk concept requires only that the consenter possesses the capacity to decide autonomously (the “Mere Capacity” view), even if they do not exercise this capacity. Study 1 shows that when agents lack autonomous decision-making capacities, participants are less likely to view their consent as valid; however, failing to exercise this capacity and deciding in a nonautonomous way does not reduce consent judgments. Study 2 finds that specific and concrete incapacities reduce judgments of valid consent, but failing to exercise these specific capacities does not, even when the consenter makes an irrational and inauthentic decision. Finally, Study 3 shows that the effect of autonomy on judgments of valid consent carries important downstream consequences for moral reasoning about the rights and obligations of third parties. Overall, these findings suggest that laypeople embrace a normative, domain-general concept of valid consent that depends consistently on the possession of autonomous capacities, but not on the exercise of these capacities. Autonomous decisions and autonomous capacities thus play divergent roles in moral reasoning about consent interactions: while the former appears relevant for assessing the wrongfulness of consented-to acts, the latter plays a role in whether consent is regarded as authoritative and therefore as transforming moral rights. Finally, I argue that the Mere Capacity view not only coheres better with the folk concept, but has independent has philosophical promise for an account of the ethics of consent.

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