In his book Consent to Sexual Relations, Alan Wertheimer discusses how several factors such as intoxication, severe mental retardation, or age (being too young) might make an agent incompetent to give (valid) consent to sexual relations. That is, if the agent lacks certain cognitive or emotional capacities, she might be unable to validly consent to sexual relations. So her consent might not be morally transformative; it might not render it permissible for someone else to engage in sexual relations with her.
This concern with competence seems somewhat inconsistent with Wertheimer’s apparent endorsement of a performative view of the “ontology of consent,” which considers consent to be a behavioral phenomenon, an external “tokening” or communication of one’s consent to another. Wertheimer rejects a subjective view of consent, which considers consent to be a psychological phenomenon or having a certain mental state.
If we are concerned about an agent’s competence to consent (i.e. her possession of certain emotional or cognitive capacities) are we not concerned with her ability to use such capacities to have certain mental states? Are we not therefore presupposing a subjective view (or at least a hybrid view, in which a behavior and a mental state are both necessary for valid consent) of what the phenomenon of consent is?     Â
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