There are substantial disputes as to what sorts of behavior constitute coercion and thereby undermine consent. This disagreement was on full display during the public fray over Aziz Ansari’s behavior on a date. Whereas some commentators condemned Ansari’s behavior as nothing short of sexual assault, others believed his behavior did not rise to the level of undermining consent.
This Article claims that the way forward is to see that there are two normative functions for coercion, and each is at play with respect to consent. Sometimes coercion is about the blameworthiness of the coercer, and sometimes coercion is about the involuntariness of the consenter’s choice. To deny the latter is not to deny the former. Because these are two disparate functions, much of the debate about Ansari may be commentators talking past each other.
After explaining this miscommunication, this Article broadens our understanding of how the blameworthiness of the coercer can bear on the permissibility of his actions. Just as no man may profit from his own wrong, coercers may not avail themselves of consent, even if it is sufficiently “freely given” such that the consenter is not acting involuntarily. This Article claims that the wrongful coercion “normatively impairs” the coercer, and that this normative impairment is at play in other legal doctrines.
With the normative grounding in place, this Article considers how and if these amendments to our view of coercion should be taken into account in the law, with a specific focus on sexual offenses. It offers a draft statute for discussion purposes, considers charges of paternalism in both the public and private sphere, and points to other reasons to be cautious about criminalization. Finally, this Article defends this view as a more perspicuous account of the normative landscape than other coercion theories. Ultimately, the goal of this Article is to define new conceptual territory for normative debate. Progress cannot be made until we ask the right questions and answer the same ones. This Article aims to provide the framework within which more nuanced discussions can be had.
Ferzan, Kimberly Kessler, "Consent and Coercion" (2018). Faculty Scholarship at Penn Law. 2327.