Very pleased today to be able to introduce our next fantastic featured philosopher: Alex Guerrero. Take it away Alex:
A common thread throughout this work is that we are regularly in complicated, murky epistemic situations in our moral, legal, and political lives—and this is something that we as philosophers should take seriously, rather than ignore or idealize away.
Here is a problem I’ve been thinking about lately, focused on the question of what the metaphysics of consent suggests for the epistemology of consent. (I have a chapter in the forthcoming Applied Epistemologyvolume, edited by Jennifer Lackey, on “The Epistemology of Consent,” from which some of this discussion is taken.)
Here are two prominent views regarding the metaphysics of consent: the attitudinal view and the performative view.
On the “attitudinal” view, an agent, A, consents to some state of affairs, SA, if and only if A has a particular attitude toward SA. The precise details of the required attitude or mental state are a matter of some debate. On the view that I find most plausible, the attitude is one of what we might call “affirmative endorsement” toward some state of affairs, SA.
The “performative” view maintains that although having a particular mental attitude is necessaryfor an agent to consent, this is not sufficientfor consent. Instead, the performative view requires a particular mental attitude plus a communicative act of some kind (whether verbal or non-verbal) that serves to communicate the existence of this mental attitude.
So, both of these views are committed to:
(Mental State) Consent requires that a person have a specific mental state.
Perhaps more specifically: an agent, A, consents to some state of affairs, SA, only if A has an attitude of affirmative endorsement toward SA.
If we accept that consent requires that the consenting individual have a specific mental attitude toward some state of affairs, then this leaves us with a problem: the problem of knowing other minds. Given the mental state component of consent, there will be the hard issue of when we have a justifiable belief that a person has the requisite mental attitude.
There are several difficulties here. The first is just the familiar difficulty about knowing what is going on in the minds of other people. There are various sources of evidence we might have to help us assess whether a particular person has a particular mental state: direct testimony, indirect testimony, other perceptual and observational evidence we might gather regarding the person’s behavior (actions, reactions, emotions).
For all of these sources, this evidence is defeasible—there are familiar ways in which one can go wrong. Subtly misread actions, facial expressions, and similar ostensible clues to the inner life of others are the bread and butter of many artistic creations: songs, films, Jane Austen novels. On the other hand, we often feel we know exactly what another person feels or believes or endorses: because they tell us, because we can see it all over their face, because of what they do.
The empirical literature on what is called “mindreading” suggests some skepticism about our ability is warranted. Shannon Spaulding, after summarizing that literature, discusses some of the common causes of mind misreading: “(1) we are too cognitively taxed to engage in thorough information search, (2) we pay attention to superficial cues, (3) we are biased by self-interest, (4) we fail to understand our own mental states, (5) and we inappropriately deploy stereotypes.” Obviously, there will be cases involving belief about the consent of others in which these potential sources of mindreading error are present.
Importantly, it is plausible that the more experience that we have interacting with a person, the easier it is to correctly infer what their mental states are, based on what they say and what we observe. This might help us avoid attending to superficial cues and using stereotypes, for example.
In the case of the mental state relevant for consent, there are five further issues worth discussing explicitly.
First, the attitude of affirmative endorsement might vary in its details depending on the state of affairs toward which it is directed. It might be more or less emotional, phenomenologically vivid, transparent to the individual whose attitude it is, or integrated into the person’s overall set of beliefs, values, and other psychological attitudes. Consenting to serious surgery is different than consenting to having your picture appear in your employer’s monthly newsletter. This kind of diversity complicates the epistemic story, suggesting that evidence of consent will also be complex and varied.
Second, there is the difficulty of knowing even relatively precise facts about the state of affairs toward which a person has the attitude of affirmative endorsement. It is hard to know the boundaries of the state of affairs to which consent has been given. There are some practices that aim to fix the object of consent with precision. Consider the work that goes into drafting explicit contractual language or the creation of multi-page forms in the medical context aimed at securing “informed” consent. But these are exceptional cases. Many of our interactions do not involve this much clarity—either to the subject whose consent it is, or to those of us who may be interested in what, if anything, the person consents to. A person might not have explicit views about the exact states of affairs to which they are consenting when beginning certain activities, even if they begin with some kind of consent to states of affairs in some general category.
Third, the specific mental attitude of the person consenting is subject to change over time, depending on the temporal duration of the state of affairs to which the person consents. Very different than promises or legal contracts, it is plausible that consent can be withdrawn or altered at any moment up until the consented-to state of affairs is concluded. This is one reason to make as certain as possible that consent in a particular case is likely to be stable over time.
A fourth difficulty is that, once we have noted that consent involves a mental attitude of affirmative endorsement toward some state of affairs, there is the question of whether it can include implicit attitudes of affirmative endorsement as well as explicit ones. There are different ways of understanding implicit attitudes. On one understanding, they differ from explicit attitudes in being both relatively automaticand introspectively inaccessible. Think of “implicit” bias. A second sense of “implicit” is familiar from discussion of implicit belief, where the difference concerns whether a representation with a certain content is actually “present” or “occurrent” in one’s mind. It is plausible that we believe things beyond those things that we are presently attending to. I believe that there is not a monkey sitting on my shoulder as I type this. I believe that the Library of Congress has a copy of John Rawls’s A Theory of Justice. I believed these things implicitly, prior to writing those sentences. While coming to think about them, I believe them explicitly and occurrently. These beliefs are not automatic, nor are they introspectively inaccessible. That is not the relevant sense of “implicit” here.
Similarly, it seems that we have implicit attitudes toward states of affairs. I hope that my cousins in Miami are doing well. I regret that I never had a chance to meet my paternal grandfather. And so on. Again, I think I had these attitudes implicitly or non-occurrently, prior to writing those sentences. After or while writing them, I attend to those attitudes, making them explicit. But I don’t thereby create new attitudes that I didn’t previously possess.
In the context of consent, it may be controversial whether implicit attitudes can do the normative work we expect from consent. I think they can. It is plausible, for example, that I currently have the implicit attitude of affirmative endorsement toward this state of affairs: that if I have suffered a devastating and debilitating accident, then I am treated by medical professionals to the best of their abilities, even if I am not conscious and cannot discuss their plans with them. We may have many implicit attitudes of affirmative endorsement of this sort, and they are (most of the time) held only implicitly, at least until they are brought to our attention and thereby made explicit. I think that in some cases of what people call “imputed” or “counterfactual” or “hypothetical” consent, there is actual consent, although it is implicit. This is controversial, however, and some might not follow me in thinking this. And we’d have to be very careful as to when we attribute implicit attitudes to people.
Thinking of consent in this way might be revisionary, because we often think of consent in relatively explicit, discrete, episodic modes: something close to saying “I do” or signing our name on a dotted line—rather than as an implicit attitude (or even a standing disposition). But if we think about what seems to be the correct normative picture in the case of, for example, consent to sexual activity, it is not obvious to me that this other implicit, dispositional, fluidly responsive picture of consent is a non-starter. Indeed, it might seem plausible, depending on what the object of consent is in a particular case. Although we can promise without saying “I promise to ____,” much of our promising does involve actual explicit statement to that effect. Consent is mostly not like that. We consent to all kinds of things without ever saying the word “consent.”
A fifth and final difficulty is that if we accept that a mental attitude of affirmative endorsement is a component of consent, then we should be open to the possibility that consent comes in degrees, rather than only being an all or nothing state. The simplest route to this conclusion would be to accept a picture on which attitudes of affirmative endorsement toward states of affairs come in degrees. In some cases, we might completely endorse a state of affairs, or completely reject it. But in other cases, I might have an attitude of tentative but affirmative endorsement—I’m at 70%, not 100%. As a result, we should think that I “kind of” consent to the state of affairs, or that I mostly consent, or we might say that the encounter was largely or mostly consensual.
This is perhaps an unsettling realization, since it is nice to think consent comes entirely in black or white. But that seems implausible as a characterization of actual moral life. We arguably should, as a moral matter, strive to engage with other in ways that are entirely consensual, rather than mostly consensual or only somewhat consensual. But it seems a mistake to think that all interactions must be classified as fully or not-at-all consensual as a conceptual matter. This, again, seems to push us away from seeing consent as any kind of analogue of promise.
Noting these components of the metaphysics of consent is essential for getting clear on the difficulty and complexity that can be involved in the epistemology of consent—knowing whether a person consents to some state of affairs, the robustness of that consent, whether the person continues to consent to that state of affairs, and what precisely it is to which the person consents. Obviously, the performative view includes a further component—the necessary communicative performance—which inherits these complexities (what exactly must be communicated for there to be normatively valid consent?).
These are hard epistemological questions about when others consent. Additionally, these questions are morally significant—they often arise in high stakes moral contexts. Accordingly, agents must do more, epistemically speaking, before they can justifiably believe that another person consents, or non-culpably act as if another person consents. We may, for example, need to look beyond the words that people say, to pay attention to non-verbal cues and personal history, to inquire and investigate further when we encounter ambiguity or contradictory signals. On this picture, “affirmative consent” standards can be understood as responding to and even articulating these epistemologicalconcerns, rather than as offering a new metaphysics of what constitutes consent.3