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Whatsapp Columbia University student Emma Sulkowicz carrying a dorm room mattress as part of a year-long performance art project to protest against the university’s refusal to expel the man she accuses of raping her. The man was found not responsible by a university inquiry and was allowed to continue his studies.

Non-consensual sex is wrong. But what exactly is it to be non-consensual? Are active consent laws clear enough in their definition? Philosophy teacher Eleanor Gordon-Smith gets to the metaphysical roots of an increasingly hot button issue.

It is by now accepted that you shouldn't touch people's bodies without their consent. Consent turns serious wrongs into normal interactions: consent to the removal of your appendix and we have a potentially life-saving surgery, refuse to, and we have a gruesome instance of battery.

There are problems with defining consent as an actual piece of performed behaviour—saying that consent is a 'yes' or that consent is a signature.

Consent to sex and we have a routine feature of adult life, refuse to, and we have a crime so serious you could hang for it in six countries. Consent is good, non-consent is bad. It's easy to be satisfied with this neat picture of things and to move on to the task of stopping people from doing the non-consensual things.

This has been the strategy of public education campaigns from the famous 'no means no' to 'rape is rape' and even 'consent is sexy', which emblazoned anti-rape slogans like 'ask first' on flimsy undies and stuffed them into Victoria's Secret display windows—little third wave renegades that came in neon pink and leopard-print.

But what, in fact, is consent? Is it something you say, something you think or something you do? It turns out to be harder to define that we might have thought.

Most other serious wrongs submit fairly easily to a plain language translation: murder is deliberately ending another person's life, theft is taking another person's property, but the plain language definition of rape does a strange loop-the-loop around the word 'consent'. Rape is sex without consent, and consent is what stops sex being rape.

Even the controversial 'yes means yes' law presently churning up American morning TV is mealy-mouthed when it comes to actually defining consent. 'Affirmative consent,' it says, 'means affirmative, conscious, and voluntary agreement to engage in sexual activity.' Affirmative consent? Is there such a thing as non-affirmative consent? Does 'conscious' here mean literally not-comatose or is it the colloquial meaning as in mindful, thinking, considered?

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What about the chutzpah it takes to start a definition of 'affirmative consent' by repeating the word 'affirmative'? The centrepiece of the definition, the word 'agreement', is just a right-click synonym for consent. It looks a lot like the California State Senate just passed a law that defines 'affirmative consent' as 'affirmative consent', which might please philosophers of language who can point out that it's not technically speaking wrong, but is deeply unhelpful for a university student trying to work out whether she has been raped.

This sort of linguistic stunt pilotry is not confined to American legislatures—the West Australian Criminal Code defines 'consent' as 'consent freely and voluntarily given', and the UK Sexual Offences Act taps out entirely, offering no statutory definition of 'consent'. This should bother us. Campaigns against non-consent can only be so useful without a clear picture of what non-consent is.

One intuitively obvious definition of consent is 'saying yes to something'. This seems to be the tectonic foundation of the 'no means no' and 'yes means yes' campaigns: consent is done, it's acted out, performed. It exists in the world and is therefore something we can see if we look hard enough.

There's at least one jurisdiction that operates on this definition: Tasmania, where 'a person does not [consent] if the person does not say or do anything to communicate consent'. This gels neatly with the definition we use in medical and economic settings. Student doctors are accustomed to the formal ritual of seeking written consent from patients before proceeding with a surgery or treatment, and courts adjudicating the validity of a sale will look for performed evidence of assent, such as a signature or a contract.

But there are problems with defining consent as an actual piece of performed behaviour—saying that consent is a 'yes' or that consent is a signature. For one thing, there are cases in which it would be seriously wrong to do something to someone even though they've said 'yes' to it—if they were drunk, 10 years old, at gunpoint, or if they did not understand what they were saying yes to.

If consent is simply a 'yes' then how can these cases exist? Consent transforms the impermissible into the permissible—how can a 'yes' fail to perform that moral alchemy if 'yes' is itself consent? As Professor Larry Alexander told The Philosopher's Zone, 'yes doesn't always mean yes'.

We might say that 'yes' is consent except when it's offered in certain circumstances, but that's a duck and weave move that misses the point of defining consent. If we have to stick addendums onto a 'consent is a yes' account to make it morally satisfactory, then the 'yes' can't house the moral power. We'd be better off defining consent as the thing that makes the difference between a good yes and a bad yes.

So perhaps, dissatisfied with the 'saying yes' view, we might pivot to what some philosophers call the 'subjective account', where consenting to something involves thinking or feeling a certain way about it. The fundamental difference is that in this view, consent happens inside a person's head. The problem is that consent, so understood, becomes invisible. If we want consent to play a role in sculpting the moral terrain around us—you can go here, you can't go here—then confining it to the inaccessible realms of other people's heads seems a strange move. How are we to adjudicate whether someone has consented?

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There's a tempting hybrid here, which is to say that consent is the appropriate attitude coupled with an out-loud (or at least, out-in-the-real-world) expression of said attitude. But this move slightly misses the point—we can say that everything's easier to administer on this definition and make the pragmatic decision to use it as the standard for codes of conduct, but the metaphysical question remains unanswered. What is consent actually? Where does the morally transformative power reside, in the thinking or the acting?

In case you're tempted to write this off as an abstraction best left to people with too much time and too many degrees, there are cases where this distinction really matters.

In Austin, Texas, a man named Joel Vandez broke into his neighbour's house and brandished a knife at her while telling her he wanted to have sex with her. She asked him to wear a condom, which he did. A grand jury then refused to indict the man for rape, taking her expression to constitute consent. The same reasoning has been used in cases in Florida and Long Island where women asked attackers to use condoms: the expression, the behaviour, was taken as consent.

Other cases seem to prefer the rival account of consent. In Papadimitropoulos v The Queen, the woman displayed all the performed trappings of consent. She said 'yes' and she sexually reciprocated. But it turned out the man she consented to sex with was not, as she had thought, her husband. He had taken her to a registry office knowing that she spoke next to no English, and assured her that she had become his lawfully wedded wife.

When he shot through a few days after their sexual encounter, she accused him of rape and he was convicted, at least at first. Even though she had performed all the appropriate behaviours taken to be consent, the court found that she had done so in the wrong mental state. The behaviour, the expression, the 'yes', was not consent.

This distinction between saying and thinking has the potential to become even more relevant in the arena of sexual wrongs in the next few years, as casual sex services and anonymity facilitate a widening in the gap between attitudes and behaviour. Already 80 per cent of people who use online dating services lie about some aspect of themselves. Are the people who have sex on the back of these lies in the clear because their partners said yes, or should we care more about what their partners thought?

Most feeling, sensible people agree that sex without consent is a serious moral wrong. There is important work to be done in order to prevent people from committing that serious moral wrong, but there is equally important work to be done on articulating precisely what it looks like.

Editor's note: The caption of the image associated with this story has been changed.

The simplest questions often have the most complex answers The Philosopher's Zone is your guide through the strange thickets of logic, metaphysics and ethics.

