Summary of 'The Epistemology of Consent' by Alexander Guerrero

Alexander Guerrero’s forthcoming paper, The Epistemology of Consent, argues that philosophical debates about consent often mistake epistemic questions about consent for metaphysical questions, and that debates about “affirmative consent” often feature this mistake. On Guerrero’s view, when we consider whether we ought to accept “affirmative consent” as the standard for sexual consent, we are considering an epistemic account about what is required before we can either justifiably believe that someone has consented or what is required before we can act on that belief, not a metaphysical account of when there is consent. Therefore, if we are justified in accepting the affirmative consent standard, it will be because of our views on epistemic justification and the relationship between beliefs/knowledge and action. Guerrero discusses implications for two contexts: sexual consent and consent to medical treatment. This summary will focus only on his treatment of the former.

On the metaphysics of consent, Guerrero highlights that some particular mental state is necessary on either the mental/attitudinal view or the performative view. On the former view, the mental state is also sufficient for consent—see the Metaphysics of Consent post here for more on this topic. At least three features of the metaphysics of consent are not controversial, argues Guerrero: consent requires a subject (the agent consenting), an object (the state of affairs one is consenting to) and it is morally transformative (states of affairs which were previously impermissible are made permissible with consent). Guerrero draws our attention to two issues that arise from a metaphysics of consent wherein an affirmative mental state is a necessary component: the problem on “innocent recipients”, and the problem of other minds.

Guerrero contends that those who are tempted to reject a metaphysics of consent on which there is a necessary mental component—the “bare performance” view – may be worried about “innocent recipients”. These are people who receive what looks to be a valid, appropriate performance of consent, when in fact it is not. The consent may eb the product of coercion, for instance. In such a case, we may be tempted to say that the recipient does nothing wrong in acting on their belief that their partner consented. Guerrero argues that we ought to accept a distinction between culpability and wrongdoing to explain innocent recipient cases, rather than adopt a “bare performance” metaphysics. The following principle should help us with the innocent recipient cases:

“Mistaken Belief: If B has a justifiable belief that A has an attitude of affirmative endorsement toward some state of affairs, SA, then B is not culpable for acting as if A consents to SA—even if it turns out that A does not consent to SA, and even if this means that what B does (given that A does not consent to SA) is objectively morally wrong”.

This still leaves us with the problem of knowing other minds; when do we have justifiable belief that another person has the requisite mental state? Guerrero outlines 3 categories of evidence that may help us answer this question, these are direct testimony, indirect testimony, and other perceptual or observational evidence. All of these classes of evidence are defeasible, and there are also other issues we might not have considered that complicate obtaining knowledge of consent. The following is a very brief overview of the 5 issues that Guerrero highlights as barriers to knowing about the mental state necessary for consent:

1.       The requisite mental state (which Guerrero thinks is best characterized as an “attitude of affirmative endorsement”) can vary in its details: it might be more or less emotional, vivid, transparent to the subject, active or passive, desired, integrated into other beliefs, etc. Insofar as this is true, we won’t have a good proxy or guide for judging whether someone consents.

2.       It’s difficult, even for the subject that is consenting, to know the boundaries of the object of their consent. We often want to know what, exactly, is the state of affairs to which consent has been given, but most of our interactions lack the formal specification of the object of consent that we find in contracts or medical consent documents. A person may not even have explicit views about many of the details involved in an act while giving consent to a general act.

3.       Mental attitudes are subject to change over time; consent can be withdrawn or altered at any moment until the relevant state of affairs is over. To know that someone gives consent to something means to know they consent presently.
For more on how we should understand cases where consent is withdrawn, see Dougherty’s Fickle Consent.

4.       We might need to know about implicit attitudes. We are mostly used to thinking of consent in terms of explicit, discrete episodes ( for example: “I do”, or signing your name), but Guerrero contends that, as is the case for implicit beliefs, we consent to all kinds of things all the time, without our consent to some state of affairs being occurrent or explicit in our minds. The requisite mental state is necessary for consent, but it may be even harder to know whether a subject has the relevant mental state if it needn’t be occurrent in their mind.  

5.       We ought to be open to the idea that consent comes in degrees, as does the mental attitude of affirmative endorsement. Why think that consent is a binary? It seems that I can have an attitude of tentative endorsement – I ‘kind of’ endorse it. Do I thereby ‘kind of’ consent? Or should we think there is a threshold for endorsement and consent exists only when we endorse something at or above the threshold level?

The above show the difficulty and complexity of the epistemology of consent, and given the moral significance of having this kind of knowledge, it “complicates the epistemological story we should tell”. Guerrero endorses two different versions of the moral encroachment thesis, arguing that moral stakes matter. He contends that we ought to accept at least one of:
a) Whether one is epistemically justified in believing p depends, in part, on the moral context
b) Whether it is morally objectionable to act on that justified belief depends, in part, on the moral context
This is motivated by comparing pairs of cases in which subjects have the same evidence or justifying basis for their beliefs, but the moral stakes of the actions they consider on the basis of those beliefs are different. A paraphrase of Guerrero’s example is as follows:

              Two people, Jack and Jill, try to assess whether there are any people inside a house. The house in fact abandoned. Jack is conducting this assessment to find out how many people live in the town. Jill is going it to determine whether anyone lives there because she is charged with demolishing it if it is vacant. Jack does what he must to justifiably believe that the house is empty; he asks neighbors, knocks on the door, peeks inside, and repeats this a week later. It’s true that no one lives inside, so it seems plausible that Jack knows that no one lives there. Jill does all the same things as Jack and sees no sign of anyone after making these investigations. Has she done enough to justifiably believe no one lives there? To know? To demolish it?

Answers to these questions will depend on one’s beliefs about the relationship between justified belief/knowledge and justified action. We may have good reason to think that features that are not paradigmatically epistemic will bear on whether a subject is warranted enough to act/believe as if some claim, p, were the case. Guerrero argues for the moral encroachment position elsewhere; for this chapter, he highlight our common intuition that beliefs be held with more confidence or evidential support if those beliefs are going to be the basis for actions that have high moral stakes (eg. it might be justifiable to form a belief based on hearsay, but think that hearsay is insufficient grounds to punish someone).

That moral stakes matter for whether a person holds a justified belief or can permissibly act as if they justifiably believe some proposition has important consequences for the epistemology of consent. Many cases in which consent is important involve high moral stakes. As a result, one must possess more or stronger evidence to justify the belief that someone consents, or to non-culpably act as though it were the case. Sexual consent, in particular, according to Guerrero is a type of case in which there are high moral stakes, and so will be a case where more or stronger evidence is necessary. It’s hard to state generally what “more” or “stronger” evidence is required, but Guerrero suggests that “affirmative consent” will be a good normative standard for the epistemology of consent. Understood properly, “affirmative consent” advocates are proposing that there be a higher bar for what counts as sufficient evidence in cases of sexual activity to believe you have consent or to act as though you do.