Balkinization: The meaning of consent

The meaning of consent

Ian Ayres

The day that the case against Kobe Bryant was dismissed, Bryant released a statement that said in part:
"Although I truly believe this encounter between us was consensual, I recognize now that she did not and does not view this incident the same way I did. After months of reviewing discovery, listening to her attorney, and even her testimony in person, I now understand how she feels that she did not consent to this encounter."

Pop Quiz: Do these sentences contradict each other?

As a first cut, the simple answer is "Yes." Bryant says (using the present
tense) that he believes the encounter was consensual - which means he believes that he consented and that he (presently) believes that she consented. But this second implication - that Bryant presently believes that she consented is contradicted by the last half of the sentence "I recognize now that she did not . . . view this incident the same way I did. . . . I now understand how she feels that she did not consent. . ."

It is a logical impossibility that Bryant could presently believe that she consented and simultaneously believe that she did not consent. If so the brave editor might insist on placing a [sic] after the "believe."

The whole problem could have been avoided if Bryant had used the past tense "Although I truly believed the encounter was consensual, I recognize now that she did not and does not view this incident the same way I did." This would not have been an admission of criminal or civil liability which turns on Bryant reasonable beliefs at the time of the encounter.

But there is a second, more sublte interpretation of this rather amazing apology. The law distinguishes between subjective and objective meanings of consent. Bryant might have meant: "I truly believe that accuser's conduct objectively manifested her consent -- and therefore was consensual in a legal sense, but I recognize now that she as a personal, subjective matter did not believe she was consenting."

No matter how you cut it, Bryant's apology by saying "believe" instead of "believed" is emphasizing the continuing reasonableness of his original beliefs, notwithstanding what he claims to have learned in the interim.

Pop Quiz Teaser Question for my next blog: Name three reasons why "Bush is the Paul Hamm of presidents."

Posted 11:14 AM by Ian Ayres [link]