The Emotional Dynamics of Consent

DOI10.1177/0022018315615290
Publication Date01 December 2015
AuthorJohn E Stannard
SubjectArticles
Article
The Emotional Dynamics
of Consent
John E Stannard
School of Law, Queen’s University Belfast, Belfast, Northern Ireland
Abstract
Consent is one of the most powerful concepts known to the law; in particular, it can provide
a defence in the criminal context by converting unlawful conduct to that which is not only
lawful but even to be encouraged. Despite this, the task of formulating a general theory of
consent in criminal law has not been an easy one, not least because of the different situa-
tions in which it operates. Given that consent fundamentally involves the subjective attitude
of the person concerned to the conduct in question, this paper sets out to explore the
dynamics of consent by considering a number of factors, including the way in which it
operates as a defence to different crimes, the problems to which consent gives rise in the
criminal context and the emotional factors which can influence someone to grant it. It is
argued that the development of the law both from a theoretical and a practical perspective
requires a more informed and nuanced concept of consent in terms of the emotional
dynamics involved.
Keywords
Consent, defences, law and emotion
We live in an age that is well aware of the value and significance of emotion in everyday life. Whereas in
the past emotions were often seen as no more than primitive passions—unruly horses, that needed to be
kept under control by the reins of reason
1
—modern scholarship on emotions not only insists that they
serve important functions, especially in our social lives,
2
but also rejects the very notion of a bright line
between emotion and reason.
3
At a more popular level, works on emotional intelligence and emotional
Corresponding author:
John E Stannard, School of Law, Queen’s University Belfast, 27–30 University Square, Belfast, BT7 1NN, Northern Ireland.
E-mail: j.stannard@qub.ac.uk
1. K. Oatley, D. Keltner and J. Jenkins, Understanding Emotions, 2nd edn (Wiley-Blackwell: London, 2006) at 4; R.C. Solomon,
‘The Philosophy of Emotions’ in M. Lewis, J. Haviland-Jones and L. Feldman Barrett (eds), Handbook of Emotions, 3rd edn
(Guilford Press: New York, 2008) at 3.
2. Oatley et al., above n. 1.
3. Thus cognition is said to play a significant part in emotion, and emotions in the forming of reasonable judgments about the
world: ibid. at 260.
The Journal of Criminal Law
2015, Vol. 79(6) 422–436
ªThe Author(s) 2015
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DOI: 10.1177/0022018315615290
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