Scalarity and divided consent: analysing rape

In this essay, it is submitted that consent comes in degrees and the wrongfulness and harmfulness of conduct is contingent on the degree of voluntariness underwriting the particular consent decision. A fully free decision to consent changes the normative nature of the act: genuine gift-giving is not theft. Lovemaking is not rape. Partially free decisions to consent can change the nature of the act if it makes the act less harmful and thus less wrongful. Partial consent is not about claiming that the conduct was partially justified, but rather about demonstrating the particular act was less harmful and thus deserving of a less serious crime label than is found in the label rape simpliciter. A second theme picked up in this essay is the issue of conditional consent. It is submitted that breaching a condition (conditions such as D is rich, D is a pacifist, D does not have HIV and so on) of consent to sexual intercourse will not change otherwise consensual nature of the sexual intercourse itself, but it may give rise to criminal liability for the collateral harm caused such as HIV infection.