The Conceptual Structure of Consent in Criminal Law
Kenneth W. Simons, The Conceptual Structure of Consent in Criminal Law, 9 Buffalo Crim. L. Rev. 577 (2006).
In this detailed recapitulation and review of Peter Westen's new book, The Logic of Consent, I commend Westen for a rigorous and illuminating analysis of the concept of consent in criminal law. Westen helpfully distinguishes factual from legal consent, factual attitudinal from factual expressive consent, and imputed consent from prescriptive consent, and he demonstrates the relevance of these distinctions to sexual assault legislation and judicial decisions.
At the same time, the review offers a number of important suggestions and criticisms.