This week, I taught my Torts students doctrines related to consent, which is a defense to intentional torts like battery and criminal charges like rape. This week, a comic hero of mine, Louis C.K., has been accused of violating multiple women without their consent. Some of the accusations are conscience shocking. Some of these accusations sound plausibly criminal, while others sound like they should not be actionable. A deeper examination of the doctrine of consent — what it protects, and why we should be cautious about raising the bar too high on when it has been granted — is necessary to separate the illegal from the creepy. Harmful is not the same as actionable, for important reasons that balance the tension between protecting safety and promoting autonomy.
In our system of civil liability, a battery occurs when someone’s actions cause an (1) intentional, (2) harmful or offensive contact, (3) without consent. A punch in the face is a battery, unless consent is given, like during a boxing match. Surgery is a battery, unless a patient permits a doctor to operate. Some sexual acts are a battery, unless consent is given. Purposely serving a vegetarian meat is a battery, if the cook knew that contact between meat and the vegetarian would be offensive, yet pretended that the food was vegetables. In that case, even if the vegetarian ate the meal, his consent was procured using fraud, and thus the consent was invalid.
Fraud negates consent, as does coercion or incapacity. A minor cannot consent to sex acts, because she lacks capacity. (This is why the allegations against Roy Moore, if true, constitute criminal conduct.) People highly intoxicated also lack capacity to consent. Coercion negates consent, so a person reasonably afraid of serious bodily harm cannot truly consent to a battery. Further, legally valid consent requires that any harmful or offensive contact not exceed the scope of consent. If you play a game of football, you have consented to some hard hits, and maybe even some penalty-level hits, but you have not consented to a player stepping on your face while you lay on the ground after a tackle. The exceptions to consent for fraud, coercion, and incapacity are designed to protect our safety. Without freely given consent, a true battery has occurred.
In tension with the protection of safety, however, is the fact that consent is an autonomy-protecting concept. Consent facilitates choice. Allowing people to consent to otherwise actionable harmful or offensive contact creates spheres in which we control our own choices, even if others believe they are bad choices. Courts allow individuals to consent to what would otherwise be a battery for the same reason they allow the battery tort in the first place. The purpose of a battery tort is the protection of personality, dignity, and bodily integrity – and people are permitted to exercise their personality rights by disposing of them when they please. We allow individuals to consent to a broad range of potentially harmful behavior, from appearing as a contestant on Survivor to engaging in BDSM. This permissive attitude towards consent represents an anti-paternalism, pro-autonomy strain in the American legal system.
If courts were to invalidate the doctrine of consent, for fear that individuals are never freely consenting to battery, then they would deny those who would be actual willing participants in an activity the freedom to engage in that activity. If someone can give consent, but then easily claim that consent was not freely given or attempt to revoke that consent, a wide range of activities would be halted. The fear of legal liability or general social condemnation would overcome the desire of even two willing participants to engage in particular activities. Those who freely consent will lose the ability to do so. If we fear that a yes does not mean yes, then people will be loath to ever accept a yes, even when it truly means yes. To protect the safety of those whose yes means no, we would have denied those who are capable of saying no, but choose to say yes, their own spheres of autonomy and freedom.
How we define consent, both legally and as a society, must balance the competing goals of safety and autonomy. These definitions matter most in the grey areas. If a woman had said “no, stop,” to Louis C.K., his behavior would be clearly instigated without consent. That is not a hard case. In recent years, many jurisdictions have set the default presumption at a lack of consent, so the women who remained silent and did not protest to Louis C.K.’s actions did not give legal consent. This shift is designed to protect the safety of those who freeze up in the face of danger or violation, and this is a virtue. We should be careful, however, before removing all burdens on others to stop unwanted action. We have raised the bar on what is required for consent such that we have ventured into the realm where “abuse of power” is considered coercive enough to undermine consent, even in situations where there is not a clear power imbalance, but someone simply feels uncomfortable saying no. A yes may mean no, if people are too concerned about saying no.
This is generally an appropriate approach in the employment context, if someone is a superior. However, if we deem all relationships at the workplace to be too fraught with abuse of power issues to produce valid consent, coworkers – even truly willing coworkers – cannot date without violating each other.
When deciding when we can negate consent, safety must be balanced with autonomy, especially if there is a meaningful ability to say “no.” The more barriers we place on procuring consent, the more we remove choices for people, who would be capable of saying no, to engage as willing participants. Asking for some to make their lack of consent clear means that those who do consent can be taken at their word.
One of Louis C.K.’s accusers was not his employee. Indeed, she was a producer on a show where he was a guest star. He asked her to engage in certain behavior, and she said no. She is still listed among those whom he violated. Of course, his behavior was creepy and highly inappropriate, and others involved in the show may have been right to condemn him. But to claim that this producer was unsafe means that we cannot expect women to withstand even being asked to consent to certain activities. This undermines the autonomy of all of us, especially women, who will be deemed by many as too fragile to say no, and thus incapable of having their yes truly believed.
Many of Louis C.K.’s actions are indefensible. Some, if true, may be criminal. This does not mean all of them are. A careful, refined thinking on consent is required during these emotionally fraught times. Not everyone who has experienced harm is a victim. We cannot raise the bar on what is required to consent so high that we forget that we are capable of saying no to things, and thus are also capable of saying yes.