Perplexing Public Attitudes Toward Consent: Implications for Sex, Law, and Society

The role of consent in sexual relations is a matter of great legal importance, considerable public debate, and current political controversy. The shifting landscape of rape law and of cultural expectations regarding sex make public attitudes toward consent worth studying empirically. This series of studies investigates lay perceptions of when consent has been granted, particularly in situations in which agreement to sex is obtained under conditions of deception or coercion. In Study 1, respondents were presented with scenarios in which sex is obtained via deception — that is, where one party is deceived about a fact material to her consent and agrees to sex under those circumstances. The results reveal that large majorities of participants regard such encounters as consensual, defying the canonical legal and philosophical view that deception vitiates consent. These findings hold true even when the perpetrator in the vignette knows that his lie is crucial to securing the victim’s acquiescence. In Study 2, the same pattern of responses is observed in non-sexual contexts. Most strikingly, a patient whose doctor deceives him in order to get him to agree to a surgical procedure is seen as giving consent — despite the fact that the surgeon lies about a fact he knows is important to the patient’s decision-making. The same result is found with regard to a research subject who is fraudulently induced to participate in a study by an investigator who seeks to recruit her for his research. Follow-up studies indicate that when judging consent, respondents pay attention both to what the individual patient cares about, and to what it would be reasonable for a patient to care about. They also put enormous weight on the distinction between saying “no” and saying “yes” — even when the “yes” is clearly the product of deceitful manipulation. Study 3 builds on these surprising findings by experimentally manipulating the type of interference — deception versus coercion — that leads the victim to agree to sex. Results indicate that whereas participants perceive high levels of consent when agreement is obtained via deception, they perceive low levels of consent when agreement is obtained via coercion. These findings carry implications for the debate among rape scholars over how to treat sex-by-deception cases. More broadly, these findings raise questions about the public’s commitment to the principle of sexual autonomy, widely believed to be gaining traction among activists, reformers, and lawmakers. Beyond sex, the concept of consent is ubiquitous in law. These study results document, for the first time, that the canonical legal view is at odds with lay intuitions about when consent has been undermined. As I will argue, this incongruity carries ramifications for the public — for their ability to assert their rights, as well as their ability to serve competently as fact-finders in legal cases involving consent.