Philosophy, Psychology, and the Ethics of Consent

Consent is morally transformative and suffuses our everyday moral and social lives. Valid consent makes the difference between permissible sex and rape; between a medical exam and assault; between entering a person’s home and trespass; between an economic transaction and theft; between contact sports and physical attacks; between the sharing of information and invasions of privacy. Moral philosophers writing on consent take themselves to capture and illuminate these ordinary practices, while claiming to do justice to commonsense claims about the circumstances under which consent is valid. Specifically, they purport to explain the way that ordinary consent can be morally transformative by offering theories of the kind of autonomous agency that is thought to underlie these ethical transformations. Moreover, these theories are then intended to capture what are taken to be commonsense distinctions between cases of valid consent, on the one hand, and invalid consent, on the other. Yet this philosophizing is normally done with little or no empirical investigation of the nature of this practice or the nature of the autonomous agency that is claimed to be crucial in justifying it. How do real agents in fact come to give consent? In what sense can their decisions be said to be autonomous? And to what extent do moral theories cohere with how consent is in fact conceived in ordinary reasoning? In this dissertation, I bring moral philosophy together with careful examination of relevant experimental psychology in order to illuminate the ethics of consent. In the first part of the dissertation, I show that we can reconcile the philosophical idea that consent must be autonomous with empirical findings that show that real decisions to consent are variable and influenced by trivial factors, without giving in to sweeping skepticism or revisionism about ordinary practices. Specifically, I examine challenges to the standard view of consent based on findings that decisions to consent are subject to framing effects. I argue that such challenges are best understood in terms of a claim about the extent to which frame-dependent consent decisions are autonomous. I propose a model of decision-making that captures how suboptimal decisions can be sufficiently autonomous for valid consent. Subsequently, I analyze arguments for the view that framing effects threaten the sufficient autonomy of consent. On philosophical grounds, I argue that being dependent on framing does not entail that consent is invalid. Furthermore, drawing on empirical work, I argue that frame-dependence does not make it likely that consent is invalid. Instead, variability in an agent’s decision to consent due to the influence of framing is compatible with sufficiently autonomous decision-making based on a reasonable weighting of the agent’s own values. In the second part of the dissertation, I report three studies showing that the philosophical idea that autonomy is importantly linked to the validity of consent is also reflected in the folk concept, but that the kind of autonomy presupposed by the folk concept is much less demanding than many philosophical treatments take it to be. Specifically, while philosophical accounts assume that consenter’s must exercise their autonomy in order to give valid consent (the “Exercised Capacity” view), the folk concept requires only that the consenter possesses the capacity to decide autonomously (the “Mere Capacity” view), even if they do not exercise this capacity. Study 1 shows that when agents lack autonomous decision-making capacities, participants are less likely to view their consent as valid; however, failing to exercise this capacity and deciding in a nonautonomous way does not reduce consent judgments. Study 2 finds that specific and concrete incapacities reduce judgments of valid consent, but failing to exercise these specific capacities does not, even when the consenter makes an irrational and inauthentic decision. Finally, Study 3 shows that the effect of autonomy on judgments of valid consent carries important downstream consequences for moral reasoning about the rights and obligations of third parties. Overall, these findings suggest that laypeople embrace a normative, domain-general concept of valid consent that depends consistently on the possession of autonomous capacities, but not on the exercise of these capacities. Autonomous decisions and autonomous capacities thus play divergent roles in moral reasoning about consent interactions: while the former appears relevant for assessing the wrongfulness of consented-to acts, the latter plays a role in whether consent is regarded as authoritative and therefore as transforming moral rights. Finally, I argue that the Mere Capacity view not only coheres better with the folk concept, but has independent has philosophical promise for an account of the ethics of consent

Autonomy and the Folk Concept of Valid Consent

Consent governs innumerable everyday social interactions, including sex, medical exams, the use of property, and economic transactions. Yet little is known about how ordinary people reason about the validity of consent. Across the domains of sex, medicine, and police entry, Study 1 showed that when agents lack autonomous decision-making capacities, participants are less likely to view their consent as valid; however, failing to exercise this capacity and deciding in a nonautonomous way did not reduce consent judgments. Study 2 found that specific and concrete incapacities reduced judgments of valid consent, but failing to exercise these specific capacities did not, even when the consenter makes an irrational and inauthentic decision. Finally, Study 3 showed that the effect of autonomy on judgments of valid consent carries important downstream consequences for moral reasoning about the rights and obligations of third parties, even when the consented-to action is morally wrong. Overall, these findings suggest that laypeople embrace a normative, domain-general concept of valid consent that depends consistently on the possession of autonomous capacities, but not on the exercise of these capacities. Autonomous decisions and autonomous capacities thus play divergent roles in moral reasoning about consent interactions: while the former appears relevant for assessing the wrongfulness of consented-to acts, the latter plays a role in whether consent is regarded as authoritative and therefore as transforming moral rights

Autonomy and the folk concept of valid consent

Consent governs innumerable everyday social interactions, including sex, medical exams, the use of property, and economic transactions. Yet little is known about how ordinary people reason about the validity of consent. Across the domains of sex, medicine, and police entry, Study 1 showed that when agents lack autonomous decision-making capacities, participants are less likely to view their consent as valid; however, failing to exercise this capacity and deciding in a nonautonomous way did not reduce consent judgments. Study 2 found that specific and concrete incapacities reduced judgments of valid consent, but failing to exercise these specific capacities did not, even when the consenter makes an irrational and inauthentic decision. Finally, Study 3 showed that the effect of autonomy on judgments of valid consent carries important downstream consequences for moral reasoning about the rights and obligations of third parties, even when the consented-to action is morally wrong. Overall, these findings suggest that laypeople embrace a normative, domain-general concept of valid consent that depends consistently on the possession of autonomous capacities, but not on the exercise of these capacities. Autonomous decisions and autonomous capacities thus play divergent roles in moral reasoning about consent interactions: while the former appears relevant for assessing the wrongfulness of consented-to acts, the latter plays a role in whether consent is regarded as authoritative and therefore as transforming moral rights

Bioethics, Experimental Approaches

This entry summarizes an emerging subdiscipline of both empirical bioethics and experimental philosophy (“x-phi”) which has variously been referred to as experimental philosophical bioethics, experimental bioethics, or simply “bioxphi”. Like empirical bioethics, bioxphi uses data-driven research methods to capture what various stakeholders think (feel, judge, etc.) about moral issues of relevance to bioethics. However, like its other parent discipline of x-phi, bioxphi tends to favor experiment-based designs drawn from the cognitive sciences – including psychology, neuroscience, and behavioral economics – to tease out why and how stakeholders think as they do

Experimental Philosophical Bioethics

There is a rich tradition in bioethics of gathering empirical data to inform, supplement, or test the implications of normative ethical analysis. To this end, bioethicists have drawn on diverse methods, including qualitative interviews, focus groups, ethnographic studies, and opinion surveys to advance understanding of key issues in bioethics. In so doing, they have developed strong ties with neighboring disciplines such as anthropology, history, law, and sociology. Collectively, these lines of research have flourished in the broader field of “empirical bioethics” for more than 30 years (Sugarman & Sulmasy 2010). More recently, philosophers from outside the field of bioethics have similarly employed empirical methods—drawn primarily from psychology, the cognitive sciences, economics, and related disciplines—to advance theoretical debates. This approach, which has come to be called experimental philosophy (or x-phi), relies primarily on controlled experiments to interrogate the concepts, intuitions, reasoning, implicit mental processes, and empirical assumptions about the mind that play a role in traditional philosophical arguments (Knobe et al. 2012). Within the moral domain, for example, experimental philosophy has begun to contribute to long-standing debates about the nature of moral judgment and reasoning; the sources of our moral emotions and biases; the qualities of a good person or a good life; and the psychological basis of moral theory itself (Alfano, Loeb, & Plakias 2018). We believe that experimental philosophical bioethics—or “bioxphi”—can similarly explain how it is distinct from empirical bioethics more broadly construed, and attempt to characterize how it might advance theory and practice in this area

Analyzing debunking arguments in moral psychology: Beyond the counterfactual analysis of influence by irrelevant factors

May assumes that if moral beliefs are counterfactually dependent on irrelevant factors, then those moral beliefs are based on defective belief-forming processes. This assumption is false. Whether influence by irrelevant factors is debunking depends on the mechanisms through which this influence occurs. This raises the empirical bar for debunkers and helps May avoid an objection to his Debunker’s Dilemma

The Neuroscience of Moral Judgment

This chapter examines the relevance of the cognitive science of morality to moral epistemology, with special focus on the issue of the reliability of moral judgments. It argues that the kind of empirical evidence of most importance to moral epistemology is at the psychological rather than neural level. The main theories and debates that have dominated the cognitive science of morality are reviewed with an eye to their epistemic significance

Blame mitigation: a less tidy take and its philosophical implications

Why do we find agents less blameworthy when they face mitigating circumstances, and what does this show about philosophical theories of moral responsibility? We present novel evidence that the tendency to mitigate the blameworthiness of agents is driven both by the perception that they are less normatively competent – in particular, less able to know that what they are doing is wrong – and by the perception that their behavior is less attributable to their deep selves. Consequently, we argue that philosophers cannot rely on the case strategy to support the Normative Competence theory of moral responsibility over the Deep Self theory. However, we also outline ways in which further empirical and philosophical work would shift the debate, by showing that there is a significant departure between ordinary concepts and corresponding philosophical concepts, or by focusing on a different type of coherence with ordinary judgments