More Sex When Drunk

This is a quick follow up to my Sex When Drunk – A Moral Dilemma post.

I’ve just been reading a UK Law Commission report titled “Consent In Sex Offences” (pub: 2000), which I came across while researching the background to the 2003 Sexual Offences Act, Generally, the report is well worth a read, but what has particularly caught my attention is the following section:

There is a possible difficulty where consent is given but then overtaken by incapacity through drink or drugs. For example, at 8 pm P makes it clear that she is looking forward to having intercourse with D that night. By 11 pm she is too drunk to know what she is doing, but D has intercourse with her anyway. Can it be said that she does not (because she cannot) consent to the intercourse at the material time, namely the time of the intercourse? In our view it cannot. Consent is not a state of mind which must invariably exist at the time of the act consented to, but an expression of agreement to that act – the granting of permission for it.

In the ordinary course of events, consent to the doing of an act at some future time remains effective unless it is withdrawn. There is therefore no  conceptual problem with P giving consent well in advance of the act to which she consents, at a time when she has capacity to do so. It would be for the jury to consider in a particular case whether, in all the circumstances, as a matter of fact the consent had been withdrawn.

I’ve got to say I find that position a little… counterintuitive – in particular, the claim that “In the ordinary course of events, consent to the doing of an act at some future time remains effective unless it is withdrawn.”

Really? As a general rule, surely not. It’s got to be contextual. If I meet somebody at a bar, and I’m flirting with them, and they promise me a “good time” back at their apartment later on (where we both accurately understand this to mean a sexual encounter), and then we carry on drinking for a while before staggering back to their place, whereupon they promptly fall fast asleep in a heap on their couch, I cannot assume that their consent remains effective simply because it hasn’t been withdrawn.

Can I?

Leave a comment ?

42 Comments.

  1. It’s probably not a good idea to have sex with someone whom you’ve just met and has fallen asleep, whether or not their previous consent is still legally valid.

    For example, let’s say you talk to someone in a bar and they suggest that they’d like you to paint their house. You take them as consenting to you painting their house.

    They begin to drink heavily and when you both reach their house, they fall asleep on the couch.

    Well, it seems that their consent to you painting their house is still valid, not a problem at all, but consenting to sex is different than consenting to you painting their house or to you borrowing their copy of the complete works of Seneca.

    Having sex with someone is a very touchy affair, so to speak. It’s not about entering into contract and framing it as entering into a contract distorts things a bit.

  2. Easy answers to obvious questions: no. What if I misheard a pass as something and answer it “yes.”?

  3. In the example given by the Law Commission, then no, consent couldn’t be relied upon. For one thing, it’s perfectly possible that the other person has changed their mind in the meantime, or didn’t intend their consent to extend to the situation in which they are unconscious. But what if consent was given immediately to losing consciousness, and specifically took account of that possibility?

    Perhaps the clearest example of this issue was in the Canadian case of R v JA, where the majority in the Supreme Court interpreted the relevant legislation as requiring ‘ongoing, conscious consent.’

    That may well be correct in terms of Canadian law, but in more general terms, I’m not quite sure why someone should be precluded from giving anticipatory consent along those lines. Specifically, it isn’t obvi­ous to me why someone should not be able to give anti­cip­at­ory con­sent to some­thing that will hap­pen while they are uncon­scious. People do it all the time when they con­sent to sur­gery under gen­eral anaes­thetic.

    But that consent would need to be very specific, I think. Assuming that an expression of willingness to do X at some later time will still apply hours later when the person is unconscious/incompetent is much more problematic.

  4. Sorry, last sentence of first para should read: ‘But what if consent was given immediately prior to losing consciousness’

  5. Colin:

    But surgery is different than sex.

    The analogy between surgery and sex would be if the person said before drinking that they would drink until becoming unconscious and that after becoming unconscious, they wanted you to have sex with them.

  6. “But surgery is different than sex.”

    In some respects, clearly. But for purposes of anticipatory consent, it’s less clear how.

    “The analogy between surgery and sex would be if the person said before drinking that they would drink until becoming unconscious and that after becoming unconscious, they wanted you to have sex with them.”

    Isn’t that more or less the scenario I described? In fact, the Canadian case – which concerned auto-erotic asphyxia rather than intoxication – was even more analogous to medical anaesthesia, since the consent could be given very shortly before the activity that rendered them unconscious.

  7. Agonizing about the morality of having sex with an inebriated person shows how meaningless life is for people who do not fear God. A religious person follows his or her conscience, which is a little voice that tells them right from wrong.

    People without the gift of faith have only the empty goals of benefiting themselves and their fellow human beings. In the area of sex, all they have is the principle that it should be consensual.

    Suppose you are stranded on an island with another person with no hope of escape and the other person doesn’t want to have sex. Is it wrong to force them? Maybe the other person will change his or her mind about it after the experience? In my opinion, this makes the principle that sex should always be consensual nonsense. The only principle that makes sense is that you should hope for salvation with fear and trembling.

  8. Talking Philosophy « New Evangelist, David Roemer - pingback on November 7, 2012 at 10:03 pm
  9. David – It’s not okay to use Talking Philosophy as a pulpit for evangelizing. You are coming perilously close to doing that. Don’t step over the line.

  10. “Suppose you are stranded on an island with another person with no hope of escape and the other person doesn’t want to have sex. Is it wrong to force them? Maybe the other person will change his or her mind about it after the experience? In my opinion, this makes the principle that sex should always be consensual nonsense.”

    I honestly have no idea what your point is. Valuing consent is not at all the same thing as fearing legal punishment. As for hoping the other person will change their mind – that is not at all the same thing as respecting their autonomy. It would be very wrong to force another person to have sex. For those of us without faith, that would be for reasons other than fear of supernatural punishment.

  11. in the ordinary course of events, consent to the doing of an act at some future time remains effective unless it is withdrawn

    There are a lot of different ways to be annoyed at that sentence.

    This is a sentence that is loaded down with a lightly disguised “all other things equal” clause. Such sentences tend to have an air of infallibility to them. If any reader thinks that it sounds compelling to infer “(p)” from “in the ordinary course of events, (p)”, that’s only because the latter could be cashed out in all kinds of ways. So, e.g., the “ordinary course of events” might mean ‘the statistically normal course of events’, or it might mean ‘a course of events that it is reasonable for a person to expect’, or it might mean ‘the course of events as further described by competent judges in the relevant cases’, or whatever. The meaning of ‘ordinary’ (and like phrases) forces the sentence to have an open texture.

  12. @ColinGavaghan
    I have another way of making the same point. Suppose again two people are stranded on an island. There are three possible political arrangements: 1) They cooperate. 2) They engage in violent warfare. 3) One becomes the slave of the other. Question: Which is the most just?

    The intelligent and rational answer is that it depends of the circumstances. There is no evidence for # 1, and choosing # 1 indicates to me a lack of understanding of the word just.

  13. I agree with the Law Commission that “.. [c]onsent is not a state of mind which must invariably exist at the time of the act consented to, but an expression of agreement to that act – the granting of permission for it …”, but they go too far when they say that “.. [i]n the ordinary course of events, consent to the doing of an act at some future time remains effective unless it is withdrawn…” or – at at least – they leave the phrase ‘in the ordinary course of events’ to do a lot of work.
    If you ask to borrow my car and I say ‘yes’ then I think it’s fair to say that it was reasonably implicit that my consent was given on the assumption that the present state of affairs would continue up to the time at which you borrow the car – or, at least, those state of affairs which are pertinent to your borrowing my car. If, after I gave my consent, you proceeded to drink several bottles of scotch and then stagger over and slur ‘give us the keys, mate!’, I don’t think it’s strictly necessary for me to withdraw my consent, because it should be fairly obvious that I gave my consent before you were so inebriated that you would be incapable of driving my car safely and my permission no longer stands.
    To return to the question of sex; if my wife indicated before dinner that see she would welcome my attentions when we return home, and we thereafter proceed to drink a bottle or two of good wine over dinner, so that by the time we got home she was feeling a little queasy, then if at that point I was so unwise as to remind her of her earlier statement she would no doubt say “.. are you out of your mind? That was before you gave me so much wine to drink. If you so much as touch me now I’ll probably throw up all over you. It’s your own fault. Now go to sleep.”

  14. It seems to me that the person consenting to sex can withdraw that offer at any time prior to the act. How ever if they are not in position so to do, for reasons such as drunkenness, concussion from a fall after the offer, or even in the bizarre case of someone suffering from multiple personality disorder, there does appear to be a problem. All such people are not of the same mental state and personality as they were when when they originally agreed to sex.
    Let me give an instance of what we probably all agree would be abominable behaviour. There is a mutual agreement to perform a sexual act at a certain address. Arriving at that address one of the parties accidentally has a fall an lies insensible on the floor. The other party rings emergency services for an ambulance and whilst waiting has sex with the insensible, or may partially sensible, person. At no time does the victim have the opportunity to rescind the prior agreement for a sexual transaction. It is not so much that consent had not been withdrawn but that a person was not in a fit state to withdraw if they so wished, for the fact that they were not their usual self.
    Jeremy says “I cannot assume that their consent remains effective simply because it hasn’t been withdrawn.
    Can I?” I think he is correct here, and the law seems harsh on this point.

  15. Ok, so hang on. First of all I agree that the notion of retaining consent until it gets retracted is counterintuitive.

    But for the sake of argument – and given surgery was mentioned – assume I am a researcher and I want to investigate the behaviour of sexual stimuli, and in particular orgasm, while under general anaesthesia and to do so, I get all the couples that responded to what would be a really weird ad as my population for my experiment.

    I then drug one partner after having taken their consent and get the other partner to have sex with them. This would be a different case in the sense that a form would be signed but, how is it ethically different to the case you describe?

  16. Re giorgos Nov. 8th

    I do not think agreeing to, and taking part in a properly conducted scientific experiment is analogous to a casual agreement for sex. As you say in the experiment, forms of agreement have to be signed and no doubt all contingencies are covered. The subjects are made fully aware, insofar as such information will not corrupt the experiment, of what is to happen and what might happen. Hopefully an insurance plan is in force to meet any accidents which might happen. The world of science would assert that an ethical approach governs all work. I don’t think however that everybody is naïve enough to believe that is always the case.

  17. By promising J a “good time”, or indeed saying they are ‘looking forward to having sexual intercourse’ with J, K seems to be consenting to a sexual encounter with J in which K will be an active (at least conscious) participant.

    If J performs a sex act on K whilst K is unconscious, it seems the act J commits is not the act K consented to. It’s not that K’s unconsciousness means their consent is no longer effective but that no consent was ever given regarding the act actually performed by J.

  18. Re Jim P Houston Nov 8th

    Surely considering those circumstances, K is faced at the outset, by having to specify, an infinitude of situations in which his or her agreement for sex is not applicable.

  19. I think that it’s just not a good idea to have sex with people who are drunk and unconscious unless they have specified beforehand that they want you to have sex with them when they are unconscious.

    It’s creepy. It’s not in good taste. You wouldn’t want the fact that you had sex with someone who was drunk and unconscious to be included in your biography. You wouldn’t want your kids to know that you had sex with someone who was drunk and unconscious. You wouldn’t want Jeremy or Don or Jim or Ben to know that you had sex with someone who was drunk and unconscious. Etc.

  20. @Don: the law – at least, the law that the Law Commission was referring to – is pretty much in agreement with you on this point. The English Sexual Offences Act contains a (rebuttable) evidential presumption that someone who is asleep or unconscious has not consented. Whether that presumption would be rebutted by evidence of explicit prior consent to carry on in the event of uncosciousness is unclear; it’s possible that denglish courts may prefer the view of the Canadian court, that consent must, for the purposes of the Act, be ongoing and conscious.

  21. Another odd thing is that the woman in the original example merely said that she was “looking forward” to having sex with D. That sounds rather remote from agreeing that D can have sex with her even if she’s unconscious, and presumably not capable of enjoying the act. And does an expression of looking forward to doing something, hours before, really amount to giving consent? That seems rather tenuous.

    I can imagine a situation where there’s a couple who are in the first throes of being in lust with each other, having as much sex with each other as they possibly can, being constantly sexually aroused in each other’s presence, etc., and V says to D something like: “If you ever wake up feeling horny, and I’m asleep beside you, just take me in my sleep.” V likes the idea of being woken up that way by this person she’s in lust with.

    Verbal exchanges like this do sometimes take place between lovers, though I wonder how many couples actually manage to go through with what is described (isn’t it likely that V would wake up as soon as D reached out for her?). Anyway, I think it would take something as specific as that before D is off the legal hook.

  22. Intuitively speaking, I wouldn’t go through with it, for the reason that for consent to remain effective unless withdrawn, there must remain the possibility for it to be withdrawn, unless otherwise stated. In other words, were I D, I would assume the consent to be contingent on the situation being such that P is capable of withdrawing it, unless P explicitly extended it beforehand to cover situations where she wouldn’t be capable of doing so.

    I came close to supporting swallerstein’s criterion, but I’ve done perfectly consensual things in bed that I wouldn’t want in my autobiography.

  23. Hello Don,

    I think I’ve muddied things by also referring back to the original Law Commission example, but I was thinking specifically about the scenario Jeremy set up.

    To my mind, K’s promise to have sex with J later in the evening cannot be reasonably construed by J as constituting the giving of anticipatory consent to J performing sex acts upon them if they fall unconscious. The point I was trying to make was that what K ‘promised’ to do with J was, as I saw it, materially different from the act(s) that might be committed upon K by J if K fell unconscious. So whether K’s consent was ineffective though never withdrawn seemed the wrong question to ask – what J would be doing in such a circumstance would be acts K never gave J any reason to think they had given their consent to. It’s a matter of K not being able to fulfil their ‘promise’ not of the propriety of J holding them to it. So what J could do in Jeremy’s scenario could still be seen as wrong even if we accepted that consent to the doing of an act at some future time remains effective unless it is withdrawn.

    I don’t see that anything about this analysis suggests that K has to specify an infinite number of situations in which his or her agreement to sex is not applicable. Actually it removes any supposed need for K to specify that their agreement is not applicable in the event that they pass out unconscious (or withdraw it before they do so). That said, however the scenario is analysed, I don’t see that there is any need for K to explicitly specify that they are not giving consent to J to commit sex acts upon them in the event that they fall unconscious (the need would be for K to specify that their consent extended, most unusually, to cover such a circumstance).

    Perhaps my analysis draws a distinction without any useful difference though and I’ve probably focused on the specific scenario too much and (as per usual) failed to say anything useful about the real questions.

  24. Re Russell Blackford Nov 8th
    Can it really get that good!!!!!?????? :razz:

  25. @Jim – Hmmmm. I think your point has some force, but two points:

    a) It seems the Law Commission report at least supposes that there is “anticipatory consent” to perform sex acts upon K where they’re intoxicated enough not to know what they’re doing. I’m not sure that’s right, but if K gives her “consent” in the full knowledge that she’s going to continue drinking, it’s not entirely counterintuitive. Of course, my view is that in this situation consent does not remain in place simply because it hasn’t been withdrawn (primarily because I don’t know K well enough to know whether she would have withdrawn her consent if she had been capable of doing so – i.e., had she known at the later point what she was doing);

    b) I think it’s pretty easy to think of examples where we would want to say that consent lapses without it being explicitly withdrawn.

    Pumpkin: Will you always love me, Honey Bunny?

    Honey Bunny: Of course, Pumpkin, darling.

    Pumpkin: Will I always be able to enjoy your beautiful body? Even if we’ve not seen each other for a year? Even if it means waking you from a beautiful sleep?

    Honey Bunny: Of course, Pumpkin, my love, I’ll always be yours…

    Pumpkin buggers off for a year, then returns to his Honey Bunny, it’s the middle of the night, she’s asleep, he crawls into bed beside her…

    Has consent, explicitly given, lapsed, even though it hasn’t been explicitly withdrawn…? Of course it has, I reckon.

  26. I should say I can see a rejoinder to the argument I’m making here. It would rely on the argument that if it is generally accepted that consent lapses over time, then actually it’s not possible to consent in the present to an act that’s going to occur (at some point x) in the future, in which case it isn’t reasonable for Pumpkin to take Honey Bunny as giving anticipatory consent, etc.

    That argument does have force, but… it just means the Law Commission position doesn’t easily get off the ground – there is no consent past a certain point in the future.

  27. Dennis Sceviour

    “Consent lapses over time…”
    Agreed, but should this mean consent lapses after P has sobered up, assuming that P is aware of the consequences before drinking? The analogy with a medical operation seems appropriate, where a patient cannot withdraw consent while under anesthetic.

  28. The analogy with a medical operation seems appropriate, where a patient cannot withdraw consent while under anesthetic.

    I don’t think the analogy is appropriate because of the checks & balances in place when one consents to a medical procedure (or at least because of the checks & balances that should be in place).

    I worked in nursing for a while, and the process of *informed* consent was taken very seriously. Not only was it associated with a whole apparatus of institutional expertise (so consent was always finally given to a doctor – via the signing of a form), but as nurses we were encouraged to chat with patients, to answer their questions, to listen to their concerns, etc., partly so that when they came to sign consent forms, the consent was genuine.

    It’s a different situation if you’re getting up close & personal with somebody you’ve just met in a bar. I’d argue that a cautionary principle would dictate that any agreement made in that situation would have to be reiterated at a later point – i.e., just before you get it on – before you could assume that the consent had not lapsed.

  29. Jeremy, I meant the analogy to apply in this respect: that there is no reason in principle why someone should not be able to give consent to X happening to her while she is unconscious, whether X be a surgical operation, a sexual act, being carried to bed or having her toe-nails painted.

    The degree to which that consent is informed may, in many cases, differ between surgical and other scenarios, as may the quality of the evidence that consent was ever given. But that is surely true of consent to any sexual act, conscious or otherwise. I see no reason in principle why we should distinguish between those scenarios with regard to the validity of the consent. (The law may, and does, regard consent as a defence to some activities and not others, but that is a consideration independent of the validity of said consent.)

    If you have just met someone in a bar, then it is indeed unlikely that their consent will be as informed or explicit as we would (usually) require of medical consent, but what of the situation in the Canadian case, where the couple had discussed precisely the scenario that arose, i.e. where the woman lost consciousness?

    It may be that we may have reason to be more suspicious of purported consent in unconscious sexual scenarios than in medical scenarios – and certainly, speaking as a lawyer, the conscious partner should be more wary of relying upon it. But I don’t see why we should rule it out altogether as a possibility.

  30. Dennis Sceviour

    Jeremy,
    Perhaps you could be more specific in the definition of the word “serious” before disregarding the analogy of medical informed consent with the current issue. There some questions. First, the medical profession takes informed consent seriously, but seriousness also applies to sexual offenses. The consequences of sexual offenses for most people are extremely serious, and often more serious than a civil judgment in a medical malpractice suit. Second, I assume the “signing of a form” suggests a separation of legal reasoning from moral reasoning. Perhaps legal reasoning should be no different from moral reasoning, or legal reasoning is as serious as moral reasoning when comparing anesthesia with drunken sex.

  31. @Colin – I certainly wouldn’t rule it out altogether – as I said in the OP, I think it’s contextual.

    So, for example, if you’ve been with your partner for 30 years, you’ve been having sex with them for 30 years, you’re at a bar with them, and they tell you that when they wake up the next morning, they want it to be because you’re in the middle of having sex with them, then, as far as I’m concerned, all other things being equal (e.g., no terrible row in the meantime), there’s no problem.

    I have no training in law, so maybe I’m misreading it, but the 2003 Sexual Offences Act seems to allow for this sort of circumstance. Specifically, although it has 75.2(c) – “the complainant was asleep…” – as an evidential presumption against consent, 75.1 states that “the complainant is taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented…”, so presumably the sort of anticipatory consent we’re talking about, especially where it is grounded in thirty years of prior experience, etc., might well count as sufficient evidence…

  32. Yeah, I think that must be right, Jeremy.

  33. @Dennis – Sorry, I’m not sure I understand what you’re getting at here. My argument is that the expression of a desire for sex later on, when uttered in the context of a sweaty embrace at a nightclub between two people who have just met, and who might have been drinking, and who might well be caught up in the excitement of the music, lights, dancing, etc., is not the same sort of thing as consent that is obtained for a medical procedure.

    In other words, the people involved in the nightclub situation should assume that the consent might well have lapsed by the time they’re actually alone together later on the same evening.

  34. I think, like Jeremy, that the notion of *informed* consent is very important here. What I anticipate happening when I hook up with a stranger in a bar may be very different to what actually happens when they start to disrobe, and disclose strange oozing scabs, a wig and false teeth, Mormon underwear or a different gender than the one I anticipated. Agreeing to sex before the event surely only means ‘…if you turn out as I expect you to’, and inasmuch as a drunk or unconscious person may not be capable of determining whether their partner is turning out as they expect them to, their consent cannot be taken for granted.

  35. @Jon – Agreed.

    But it’s also that there is a reasonable possibility that they might not feel about it the way they thought they were going to feel about it, regardless of their expectations about me as a partner.

    So, for example, on the way home from the nightclub, they might be thinking, “Bloody hell, this whole sex business doesn’t seem such a good idea right now, what was I thinking, I’ll let the fella down gently at my front door… God, I’m really not feeling that great… I think I’m going to faint…”.

    As I’ve said, you can’t assume consent hasn’t lapsed just because it hasn’t explicitly been withdrawn. If you don’t know somebody very well, it has to be reiterated in this sort of situation… that’s my view.

  36. Jeremy,
    It is the same sort of thing, as consent or permission is a moral judgement and not a natural biological function. Spontaneous contractual arrangements are made all the time on impulse such window-shopping or tattoos. The principle of consent and contractual capacity is much the same for all these events. The point is that one cannot separate a medical procedure as different because one signs a piece of paper. On the contrary, the similarity of voluntary drunkenness and anesthesia makes the analogy interesting.

    Look at it this way, a medical patient might think:
    “Bloody hell, this whole ear-bobbing business doesn’t seem such a good idea right now, what was I thinking…I think I’m going to faint…”

  37. @Dennis – But it isn’t the medical procedure that’s different, and it isn’t (just) the signing of the paper.

    As I said in my 9.03pm post, it’s the whole context within which consent is secured that is different (including institutional expertise, on-going consultation, availability of information, time for rethinking, etc, etc).

    The point about a medical patient changing their mind is not relevant to the point about informed consent I’m making, but it is an interesting issue in and of itself. Presumably a patient can withdraw consent right up until the moment of unconsciousness… (though one does wonder whether that’s de facto the case).

    Also, you know, if the medical professionals suspect that a patient is having second thoughts, then I’d say we’re in the same moral territory as with the two people in the nightclub. Regardless of the legal situation, if you have that suspicion, you ought to get a reiteration of consent.

  38. Jeremy,
    That sounds like good advice. :smile:

  39. Jeremy and Dennis,

    The only thing I’d add there is that there can be many instances when consent to medical Rx is given in circumstances considerably less ideal than those Jeremy described in his 9.03 post. In emergency departments of a Saturday night, a great deal of ‘consent’ is given in circumstances of borderline concussion, shock and intoxication. Doctors and nurses in such situations have to make difficult judgment calls as to whether patients – particularly those purporting to decline treatment – actually know what they are doing, and they often don’t have the luxury of long & thorough consultations. (I’m not any kind of medic, but I did teach medical law to medical professionals for 10+ years, and heard a lot of hair-raising stories.)

    Equally, there may be instances where consent to sex is indeed very thorough and informed. I have known people involved in the BDSM scene, where consent appears to be taken very seriously indeed.

    So I wouldn’t personally draw a clear and bright line between sexual and medical scenarios, though I take Jeremy’s point that the former are, in general, likely to be more problematic than the latter.

    ‘Presumably a patient can withdraw consent right up until the moment of unconsciousness… (though one does wonder whether that’s de facto the case).’

    Absolutely. They have a legal and ethical right to do so, but how often they feel emotionally equipped to do so is certainly highly questionable.

    ‘Also, you know, if the medical professionals suspect that a patient is having second thoughts, then I’d say we’re in the same moral territory as with the two people in the nightclub.’

    Again, I think that’s exactly right.

  40. Re Jeremy Stangroom November 9
    “Pumpkin buggers off for a year, then returns to his Honey Bunny, it’s the middle of the night, she’s asleep, he crawls into bed beside her…
    Has consent, explicitly given, lapsed, even though it hasn’t been explicitly withdrawn…? Of course it has, I reckon.”

    Crawling into bed beside Honey bunny Pumpkin hears an unfamiliar voice ask “Who the F*** are you?” Honey Bunny has married during Pumpkin’s Buggering off period, and consent has almost certainly been withdrawn, albeit that Pumpkin finds out at the last possible moment. :lol:

  41. Thanks Jeremy -points well-made and taken.

    Looking at your other comments here and on the earlier thread, I don’t think there’s anything about your position that I’d take issue with.

  42. @Colin – Yes, I accept all that. My point really is that the proposition that

    In the ordinary course of events, consent to the doing of an act at some future time remains effective unless it is withdrawn.

    is easily falsified, such as in the nightclub example I gave, not that it is never reasonable to think that consent extends through time, etc.

    I also don’t want to suggest that medical consent is unproblematic, merely, that it is often more considered, informed, etc., than is the case with random nightclub hookups (which makes it more likely in the case of medical stuff that consent will extend across time – but doesn’t make it anything like inevitable).

    The medical consent thing is interesting. There’s been something of a debate recently about end of life care, where the suggestion is that consent for ever more damaging treatments is not properly informed, because it is bound up with an institutional context where the medical profession is invested in the attempt to prolong life, even where quality of life is significantly undermined, there is no real prospect of extending life for any large period of time, etc.

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