The Logic of Consent | Peter Westen | Taylor & Francis

A 2004 book by Peter Westen. Abstract:  Consent matters because of the normative work it does. Consent possesses what Heidi Hurd calls ‘moral magic’.1 Its moral magic-as well as its legal magic consists of its power to change moral and legal relationships between persons who engage in consent and persons to whom the consent is directed. In criminal law, consent can transform the most horrific crimes into noncrimes, turning ‘rape’ into sexual intercourse, ‘maiming’ into therapeutic surgery, ‘kidnapping’ into vacation, ‘trespass’ into hospitality, and ‘theft’ into gift-giving.2 Even when it does not transform crimes into noncrimes, consent can mitigate the severity of crimes by reducing them from aggravated offenses to nonaggravated offenses, as it does, for example, in reducing murder to assisted suicide, and rape to adultery or fornication in jurisdictions that continue to criminalize the latter.