Dougherty's well-formed consent

by Kelsey Vicars

Tom Dougherty, in his 2014 paper, “Fickle Consent”,  argues that present dissent trumps past consent. He looks to find an explanation for why the timing of consent matters in this important why. Why is it that one’s present consent is typically special?

He proposes: PRESENT DISSENT. Outside of binding contracts, we pro tanto must respect someone’s well-formed present dissent even when she has given her well-formed consent in the past or will give her well-formed consent in the future. 

Dougherty argues that we should reject act based explanations and that we should accept a rule based explanation instead: our interests will be best served if we follow the rule that present dissent trumps past consent. 

He argues that PRESENT DISSENT serves our interests very well, and importantly serves our interests better than the alternatives would, i.e. a rule like INITIAL CONSENT where a person’s initial consent trumps their present dissent, or OVERALL CONSENT where an aggregate of a person’s past and present consent is important in determining consent. 

In section 2, Dougherty discusses some qualifications for limiting consent and dissent. The first he notes is that present dissent trumps past consent only when it is “well-formed” - only when the dissenter is in a suitable state of mind when she withdraws her consent. 

He gives two cases to illustrate (I’ve filled in the Odysseus case for those unfamiliar with the story, and I’ve added a name for the patient in pain example):

Odysseus Odysseus is sailing his ship past an island that he knows has sirens on it. The sirens’ song will bewitch the listener’s mind and persuade them to shipwreck themselves on the nearby rocks. He asks his crew to tie him to the mast of the ship so that he can’t steer towards the rocks (he consents to be tied). 

Surgery Faye “consents to undergo surgery without anesthetic, but is unable to bear the pain, fear, and anxiety during the surgery itself, and so asks the surgeon to stop” (p. 4).  

Dougherty writes, “Plausibly, the surgeon may disregard this dissent on the grounds that it is ill-formed in light of the patient’s perturbed mental state” (p. 4). I’m not sure if I actually agree with the second case already, but I am especially worried about what Dougherty’s claims would mean for sexual consent. For example, consider the following cases:

Jerome Jerome struggles with psychosis and takes regular medication to manage their illness. On Monday morning, Jerome consents to have sex with Alex and asks Alex to come over. While Alex is travelling to Jerome’s house, Jerome forgets to take their medication / the medication malfunctions and Jerome subsequently suffers a psychotic episode. When Alex arrives, Jerome says that they now presently dissent to have sex with Alex. 

Rosa Rosa has been the victim of a sexual abuse that has made some sexual activities painful, and that has caused a lot of fear and anxiety around sex in general. Rosa consents to have sex with Ana. But once sex begins, Rosa finds that they are in a great deal of pain and that they are starting to extremely anxious and fearful. Rosa tells Ana that they presently dissent. 

These two cases are meant to mirror structurally the Odysseus and patient in pain cases Dougherty describes. I take Odysseus to be structurally similar to Jerome. Both Odysseus and Jerome offer initial consent, then undergo some mind altering event and then presently dissent. I take surgery to be structurally similar to Rosa. Both Faye and Rosa offered initial consent, then experience overwhelming pain, fear, and anxiety, and then presently dissent. 

Dougherty claimed that present dissent does not trump initial consent in the surgery case and the Odysseus case because their dissent was ill-formed. So I assume he would say the same thing about Jerome and Rosa. Contra Dougherty, I think that in both these cases, the present dissent ought to be taken as authoritative, and it should not be trumped by past consent. 

So what’s going on here? One possibility is this shows that wellformedness matters more for consent than dissent. Perhaps it is the case that the conditions that can make consent “ill-formed” are more salient when a person offers consent than for dissent. In other words, maybe it ends up being easier to give well formed dissent than well formed consent. For instance, although I think that mind altering states and pain or anxiety should not undermine one’s present dissent, I would want to be open to the idea that similar states could undermine consent (especially if we include alcohol as contributing to mind altering states). 

Another possibility is that my cases involve consent to sex whereas Odysseus and surgery don’t. And maybe this points to the idea that consenting to sex is just different than consenting to other kinds of things. 

Either way, I take these two cases to put pressure on Dougherty’s view of ill-formed dissent. That his view ends up with the conclusion that agents who presently dissent while in perturbed mental states or who are anxious or in pain seems to me to be a point against his discussion of wellformed and illformed consent.