The depravity of the concept of “implied consent.”


Hang on, I got it… women who drink give their “implicit consent” to having sex with anyone. There, problem solved!

Consent is the absolute bare minimum criterion for social interactions. Therefore, any concept that tries to dilute or trivialize consent is coercive by definition. The concept of “implied consent” is one I’ve recently discovered. I’ve never heard of such a concept, but it is an actual legal concept used to prosecute individuals.

It seems to be mostly used to prosecute drivers who refuse to take alcohol tests. Here is one example:

Section 724.011 of the Texas State Transportation Code states that anyone who is arrested for Texas DWI “is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person’s breath or blood for analysis to determine the alcohol concentration or the presence in the person’s body of a controlled substance, drug, dangerous drug, or other substance.” Basically, whenever you stick your keys in your ignition and start your car, you are consenting to take an alcohol or drug test if a police officer deems it necessary.

But it can also be applied to other actions:

In many common law jurisdictions, a couple who married were deemed to have given “implied consent” to have sex with each other, a doctrine which barred prosecution of a spouse for rape. This doctrine is now considered obsolete in most countries.

Nice way to put it, “obsolete.” The use of words here is so blatant that I can’t even believe it! That can’t possibly have been on purpose (or could it?).

Anyhow, the principle here is that by doing one action, we are giving some unrelated form of “consent”. And unrelated they must be, otherwise we wouldn’t call it “implicit.” Starting your car is not a signal of consent to submitting to a breath test. Getting married to someone is not a signal of consent to having sex with them at any time. There is no communication in either case that the act was agreed upon.

But even if there was, consent cannot be given prospectively. Saying you will have sex with someone at any time, and then not wanting to have sex with them and still being forced to do so, is rape. Saying you will submit to any breath test in the future, and then refusing to take one, is absolutely your right, legal doctrine notwithstanding.

The argument mounted by the statists would probably be around the lines of “driving is a privilege, not a right, so you have to submit to the State’s restrictions in the name of everyone’s security.” Well, I would disagree that driving is not a right, given that the vast majority of the population needs to drive to get to work or to buy necessities. So that’s out the window.

But besides that, even if we assume for the sake of the argument that driving is a privilege, there is still no link between that and “implied consent,” which is a contradiction in terms. One may argue that the State should impose restrictions on driving, but one cannot argue that “implied consent” justifies them. Either consent is present or it is not, and in the latter case one can only provide justification by appealing to the virtues of authoritarianism. That, at least, would be honest.

People who accept this concept of “implicit consent” become so intellectually depraved that they start making up “degrees of consent,” such as in this diagram from a paper called The Scale of Consent:

So now you give your consent simply by existing in a society which has a tradition of doing something, say… honor killings, or female genital mutilation. Sorry you happened to be born in a society where these things are promoted, but you gave your consent by being born! You didn’t consent to being born either, but there you were, a sexy little fetus, just asking for it… Let’s face it, you deserved it.

I bring up rape not just to be glib, but also because it is very much the end point of this slippery slope. Here is one example from an antifeminist arguing that “implied consent” justifies rape:

Teach young women what the words implied consent mean. If you leave the keys in the ignition of your car, the law takes that as your implied consent to have people steal your car. We’re working on teaching people NOT to steal cars, but so far, no luck.

If you get really trashed, start making out with a man, go to his room, remove your clothes, then change your mind AND DON’T SAY ANYTHING, you have implied consent. Claiming you were “paralyzed with fear” is bullshit. If you have changed your mind, you have to SAY that. Otherwise your actions have implied consent. You can’t wake up the next day and decide you were raped.

You may complain that her reasoning is flawed, but how is it any different from other cases of “implied consent”? Objectively, there is no more relation between getting drunk or making out with someone and agreeing to sex than there is between putting your keys in the ignition and agreeing to take a breath test.

Taken to its logical conclusion, we must conclude that any crime can potentially be justified by some kind of “implicit consent.” Being in a gang could be “implied consent” to be murdered. Walking outside at night could be “implied consent” to getting kidnapped. There is really no inherent limit here.

We can also apply this “reasoning” to other radical ideologies. Atheists “implicitly consent” to a traditional religion by being born in that tradition. Anarchists “implicitly consent” to a State by being born within its borders and using its services. Antinatalists “implicitly consent” to being subjected to life’s down sides because they are alive. All of this is pure illogical nonsense, but such “reasoning” is always used, in some form or other.

5 thoughts on “The depravity of the concept of “implied consent.”

  1. Miep March 12, 2014 at 21:12 Reply

    Reblogged this on There Are So Many Things Wrong With This and commented:
    Excellent.

  2. cyanidecupcake April 30, 2014 at 22:10 Reply

    In the same vein, a woman having sex and getting pregnant is seen as “implied consent” to give birth (a common argument by natalists, along with,”If you don’t want to get pregnant, then don’t have sex!”). Also, this has made me rethink the legal recognition of marital rape; it is not very binding when a spouse can sue for divorce on the grounds that the other didn’t do their “marital duty” of implied consent to sex.

  3. stevenanimator April 24, 2015 at 11:23 Reply

    I don’t understand why the legal definition of consent must be narrowly defined as explicit in a marriage where the two partners have had a sexual relationship. I agree that this ‘implied’ consent would not mean a spouse can force themselves onto the other, but in a situation, for example, where one spouse cannot give explicit consent – that shouldn’t mean that any sexual relations in that capacity would equate to marital rape. Imagine if one spouse had a stroke and couldn’t communicate or a spouse has Alzheimers.

  4. Steve 50 March 13, 2016 at 16:59 Reply

    “If you get really trashed, start making out with a man, go to his room, remove your clothes, then change your mind AND DON’T SAY ANYTHING, you have implied consent. Claiming you were “paralyzed with fear” is bullshit. If you have changed your mind, you have to SAY that. Otherwise your actions have implied consent. You can’t wake up the next day and decide you were raped.”

    The author did NOT dispute this at all. It makes sense, people are not mind readers, why is it so hard to say no, what’s the problem. If you can prove that you were in a circumstance where you could not speak, then yes there is legitimate reason to imply that consent was not given. But if the girl is not threatened, is not in a hostile environment, if free to move and speak, and she chooses not to say anything while her body language and previous actions suggest she wants sex, then I’m sorry this is not rape and consent is then implied.
    The author also did not give an alternative to “explicit consent” how would people then have sex according to the author? So anything short of “Hey can I have vaginal intercourse with you now?” , ” Yes you may.” is rape. This is absurd, it is not how human sexuality works and not how people behave. This notion of “explicit” or “affirmative” consent is almost like a cult like ritual.

    • Francois Tremblay March 14, 2016 at 00:54 Reply

      “But if the girl is not threatened, is not in a hostile environment, if free to move and speak, and she chooses not to say anything while her body language and previous actions suggest she wants sex, then I’m sorry this is not rape and consent is then implied.”

      No. That’s not how consent works. You can’t consent for something that will happen in the future. And you don’t get to interpret someone else’s body language to suit your dick. Fuck you.

      “So anything short of “Hey can I have vaginal intercourse with you now?” , ” Yes you may.” is rape. This is absurd, it is not how human sexuality works and not how people behave.”

      Ridiculing proper consent like you’re doing is being a real fucktard. No, you don’t have to say it like that, obviously, and it’s not how people usually give or ask for consent. You know that and the only reason why you’re phrasing it like that is to make it sound silly. Fuck you.

      “This notion of “explicit” or “affirmative” consent is almost like a cult like ritual.”

      Fuck you, rapist asshole.

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