A puzzle about consent

Suppose you don’t want to do something, like drink a bitter-tasting but healthy beverage. A friend, C, is offering to give you the beverage. You know that it’s healthy for you, but you refuse it because it tastes bitter. Suppose C knows that you refuse it because it tastes bitter.

Now suppose the next time C offers you the beverage (he’s persistent), I offer to pay you a sum of money to say “Yes” when C asks to give it to you. You take my offer, and when C asks to give you the beverage you say “Yes.”

The puzzle is whether C can really give you the beverage. I paid you to say, “Yes” when C asks to give you the beverage. C knows you don’t want the beverage, but you just said “Yes.” “Yes” is normally a sign of consent. But did you really consent to drink the beverage? Or did you just say “Yes” when C offered the beverage to you?

One possibility is that when you consented to say “Yes” to C, you ipso facto consent to C’s offer. This possibility is implausible. It would make it impossible for you to revoke your consent, for example, which is highly counterintuitive.

Another possibility is that when you agreed to my offer, you did consent to C’s offer. Specifically, you consented to getting a sum of money and drinking the beverage. In economic terms, the sum I offered was sufficient to make you indifferent between the sum and drinking the beverage. When C offers you the beverage, and you say “Yes,” you consent to drink the beverage. The second possibility is a more plausible analysis of our exchange, but it still leaves open the question of whether C can give you the beverage. After all, C knows you wouldn’t consent to the bitter beverage even though you consented to the bundle of (drink beverage, money). However, the worry about whether C can gives you the beverage goes away if we assume that the person drinks the beverage in order to get the money. Your will is to drink the beverage (for the instrumental reason of getting the money), so C is acting in accordance with your will.

A third possibility is that you do consent to C’s offer, but you do not consent voluntarily. That is, C’s offer is in line with your will, but your will is not a free one. A free will is where you want something, and you want something because you want it. In this case, you want the beverage because I paid you.

A fourth possibility is that you did not consent to C’s offer. Instead, you consented to getting a sum of money and saying a word that normally signifies consent. You didn’t actually consent, however. So C offers you the beverage, and you say “Yes,” he gives you the beverage without even your consent. The third possibility is the most interesting here because it raises a puzzle about the relationship between consent and expressing consent. We normally think that you can’t express consent unless you’re also consenting. But in the fourth possibility, you express consent without consenting because I pay you to say “Yes” without actually consenting.

I am most interested in the fourth possibility here. The fact that something goes wrong when I pay you to express consent without actually consenting shows that consenting is about a subjective state, not just an external performance. It can be wrong to do something even if someone expresses consent to it because expressing consent does not entail consent.

However, because consenting is a subjective state, our only means of verifying or falsifying consent is through public signals. We rely on expressions like “I consent” to indicate whether you consent. This makes my deal to you particularly dangerous, more dangerous than the third possibility of involuntary consent, because it corrupts the meaning of the expression.

The difference between the third and the fourth case is that while in the third case you are not freely consenting, and your consent is imperfect, in the fourth case you are actually lying.

Consent is an internal, subjective state, but it is also a social practice of signaling to others how we want to distribute rights and obligations. Because we cannot observe the subjective state of consent, however, the social practice of consenting needs special protection. In the third possibility, it’s probably wrong for C to give you the bitter drink. But in the fourth possibility, while it’s still wrong for C to give you the bitter drink, it is more wrongful of me to make the offer in the first place. In offering you money in exchange for merely expressing consent, I erode the integrity of a social practice for accessing consent.

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