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Gersen, Jacob E.; Suk, Jeannie --- "Timing of consent" [2017] ELECD 555; in Fagan, Frank; Levmore, Saul (eds), "The Timing of Lawmaking" (Edward Elgar Publishing, 2017) 149

Book Title: The Timing of Lawmaking

Editor(s): Fagan, Frank; Levmore, Saul

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781785364327

Section: Chapter 7

Section Title: Timing of consent

Author(s): Gersen, Jacob E.; Suk, Jeannie

Number of pages: 22

Abstract/Description:

Consent distinguishes certain criminal acts from non-criminal ones. Sex without consent is sexual assault. Sex with valid consent is just, well, sex. In this chapter, we focus on one particular aspect of consent to sex – the timing of consent. That is, not whether consent is given, how consent is given, or the scope of consent that is given, but rather when consent is given. More precisely, we explore the relation between the timing of consent and these other aspects of the consent calculus, in light of the changing definitions of sexual assault in criminal law and university sexual misconduct codes. In this setting, retrospective consent offers a partial corrective for definitions of sexual misconduct that render most sex technically a violation. Keywords: sexual assault, consent, retrospective, retroactivity