{"title":"Do you read me?","authors":"F. Deamer","doi":"10.1558/ijsll.21000","DOIUrl":null,"url":null,"abstract":"This paper argues that there are three separable but related dimensions that are important to the legal notion of consent. One is a consenting state of mind, the ‘going along with’ a plan of action, which may or may not be communicated or even reflected upon, but which certainly can be. A second is displaying behaviour which reveals or is an expression of consenting. Another is intentionally communicating consent. I illustrate how the communicative act is often vitally important as evidence of an underlying consenting state, but the underlying consenting state has to be postulated and brought to the fore since consensual actions (e.g. sexual intercourse) can, and more often than not do, take place without the communicative acts, and the communicative acts might for various reasons be made in the absence of the genuinely consenting state of mind. The arguments I put forward offer a reframing of cases in which an apparent intentional communication of consent was treated as consent, rather than as a piece of evidence which may or may not be indicative of a consenting state of mind. This paper emphasises that we must not allow the importance of something as evidential to eclipse the underlying phenomenon, which is itself, however hard to access otherwise, the thing of primary legal importance.","PeriodicalId":43843,"journal":{"name":"International Journal of Speech Language and the Law","volume":null,"pages":null},"PeriodicalIF":0.5000,"publicationDate":"2023-08-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"International Journal of Speech Language and the Law","FirstCategoryId":"98","ListUrlMain":"https://doi.org/10.1558/ijsll.21000","RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q4","JCRName":"CRIMINOLOGY & PENOLOGY","Score":null,"Total":0}
引用次数: 0
Abstract
This paper argues that there are three separable but related dimensions that are important to the legal notion of consent. One is a consenting state of mind, the ‘going along with’ a plan of action, which may or may not be communicated or even reflected upon, but which certainly can be. A second is displaying behaviour which reveals or is an expression of consenting. Another is intentionally communicating consent. I illustrate how the communicative act is often vitally important as evidence of an underlying consenting state, but the underlying consenting state has to be postulated and brought to the fore since consensual actions (e.g. sexual intercourse) can, and more often than not do, take place without the communicative acts, and the communicative acts might for various reasons be made in the absence of the genuinely consenting state of mind. The arguments I put forward offer a reframing of cases in which an apparent intentional communication of consent was treated as consent, rather than as a piece of evidence which may or may not be indicative of a consenting state of mind. This paper emphasises that we must not allow the importance of something as evidential to eclipse the underlying phenomenon, which is itself, however hard to access otherwise, the thing of primary legal importance.
期刊介绍:
The International Journal of Speech, Language and the Law is a peer-reviewed journal that publishes articles on any aspect of forensic language, speech and audio analysis. Founded in 1994 as Forensic Linguistics, the journal changed to its present title in 2003 to reflect a broadening of academic coverage and readership. Subscription to the journal is included in membership of the International Association of Forensic Linguists and the International Association for Forensic Phonetics and Acoustics.