Earlier this month, a reporter at the Sydney Morning Herald sent actress Rebel Wilson an email requesting her comment on a piece he was planning to publish. The piece, which focused on her romantic relationship with a woman, would have outed aspects of her sexual identity that Wilson had yet to talk about publicly. This reporter was committing no legal violation by revealing information about a public figure’s sexuality without her consent. However, by Wilson’s and numerous observers’ reactions, it was clear that it would have been a violation nonetheless. In essence, Wilson’s personal information was under threat of being shared in a way that may have been legal, but was still nonconsensual.
Consent is at the center of many of today’s most pressing social issues: What counts as sexual assault? Who are the police allowed to search? Who gets to decide whether a child can undergo a medical procedure? How can someone’s data be used?
Typically, questions of consent are debated on their legal merits: What is someone legally allowed to do to, or expect of, another person? Can this particular individual in this particular situation be considered to have legally consented?
This emphasis on legality makes sense. After all, a legal determination of consent fundamentally transforms how an experience is defined and understood. As Michigan Law Professor Peter Westen has argued, consent possesses “moral magic,” turning “‘rape’ into sexual intercourse, ‘maiming’ into therapeutic surgery, ‘kidnapping’ into vacation, ‘trespass’ into hospitality, and ‘theft’ into gift-giving.”
Yet, as the Wilson example above reveals, even when the legality of an act is not in question, the consensual nature of an act as it is subjectively experienced still has important consequences. In other words, even if an act was not legally rape, maiming, kidnapping, trespassing, or theft, certainly feeling as if it was any of these things is meaningful in itself.
Even when the legality of an act is not in question, the consensual nature of an act as it is subjectively experienced still has important consequences.
While it is not the law’s job to concern itself with individuals’ subjective feelings of consent in these situations, it is the job of psychologists. In an article in Perspectives on Psychological Science (open access), I argue that psychologists should embrace consent as a core topic of study, incorporating and expanding on research already being conducted on “specialty” topics, such as sexual consent and informed consent. As I argue in my article, we have much to gain by a serious examination of individuals’ feelings of consent across a wide range of situations.
Embracing consent as a core topic in psychology requires starting with a working definition of consent. For that, we can look to legal scholars who have identified three main components of consent: competence (an individual must be capable of consenting), knowledge (an individual must be appropriately informed), and freedom (an individual must agree to something voluntarily). While the law uses these criteria as a sort of threshold that must be met to answer the question of whether someone can be said to have legally consented, psychologists can use these same criteria in order to ask a different, complementary question: What makes an actor feel like they have consented? That is, what makes an actor believe they have the capacity to consent, believe they are adequately informed about what they are getting into, and feel like they can refuse or walk away from the situation? Then, what are the consequences of these feelings?
To illustrate, take the example of police search. Police officers in the United States are allowed to search an individual’s person or property without a warrant or cause, so long as the individual agrees to the search. These consent-based searches account for the vast majority of searches conducted by the police (over 90 percent). Legally, an officer is not required to advise an individual that they have the right to refuse, and, notably, “voluntary” consent to police searches can in some cases be greater than 99 percent. In experimental research Roseanna Sommers and I conducted, in which we examined targets’ felt experience of such interactions, we found that targets of these kinds of requests did not feel as free to refuse these requests as outside observers imagined them feeling. This means that despite the fact that such searches are legally consensual, the searched individuals may not in fact feel as if they consented to these searches. Targets of such searches may not know they have a choice or they may not feel free to say no.
What makes an actor believe they have the capacity to consent, believe they are adequately informed about what they are getting into, and feel like they can refuse or walk away from the situation?
This, in turn, may have important consequences. If your acquiescence to a search request does not feel consensual, how might having your property or person handled without feeling that you consented affect your sense of value and respect? What about your relationship with and trust in law enforcement and other institutions? And if, indeed, such experiences impact people in negative ways, then how can we make these kinds of interactions between police and citizens—interactions that are by definition meant to be consensual—feel more consensual, while also maintaining high rates of compliance? These are the kinds of questions we need a broader psychology of consent to be able to answer.
Assumptions that people have long held about consent are currently being re-examined. The MeToo movement has highlighted questions of sexual consent. Recent court cases have challenged the age at which youth should be able to consent to gender confirmation therapy. Some states have lowered (and others have raised) the age of medical consent to the COVID vaccine. Privacy advocates have asked whether users are really consenting to unread terms and conditions outlining the use of their data.
Many of these debates are legal, but there will inevitably be instances in which the law and the psychology of consent diverge. Individuals who feel like they did not consent will be determined to have legally consented. Individuals who feel free, informed, and capable enough to consent will not be legally permitted to consent. And there will be cases that have no legal component. All of this makes this a critical time to further our understanding of the psychology—particularly, the subjective feeling—of consent.
