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The Routledge Handbook of the Ethics of Consent

Andreas Müller, Peter Schaber

Voluntary consent

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Thomas Gutmann
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19
VOLUNTARY CONSENT
Thomas Gutmann

19.1 Introduction
It is generally thought that valid consent (cf. Bullock, this volume, Chapter 8), which is morally
and/or legally transformative, must be suitably competent, informed and voluntary. A lack of
voluntariness renders a person’s consent invalid.
(1) “Voluntariness” describes a basic feature of actions for which we can attribute responsi-
bility to the actor. There are different dimensions of how an agent’s responsibility (in a broad
sense) might be negated because she has acted involuntarily. Consequently, there are discrete
types of normative claims that give rise to the question of whether there has been coercion; the
truth conditions that sustain an affirmative answer for one type of claim may be quite different
from those that constitute “coercion” for purposes of the other (Berman 2002). In the realm of
consent, it is not whether the agent can be excused for his action or whether his action can be
justified that is of interest to us, but rather whether the agent’s consent loses its validity and its
transformative effects within the respective moral or legal relationship because we cannot hold
it to sufficiently reflect the agent’s own will, preferences and values. In short, in order to be an
instance of a valid exercise of a normative power to bring about a change in the nexus of rights
and duties within a relationship (cf. Hart 1982; Raz 1999: 97 ff.), a token of consent needs to
be voluntary.
(2) The term “voluntariness” can be used in a broad as well as in a narrow way. If we dis-
tinguish voluntariness, information and competence as different criteria for valid consent
(cf. Wertheimer 2003: 7), coercion is the only defect in consent in the dimension of its voluntariness.
In a broader notion, lack of voluntariness could also consist in cognitive defects (lack of infor-
mation or understanding, including error and deception; see Feinberg 1986: 151; Wertheimer
1987: 4 and 224, 1996: 26) since a person’s choices made without access to the relevant infor-
mation cannot reflect her values or judgements. Arguably, lack of competence (failure to attain
a certain threshold of cognitive and volitional capabilities necessary for giving valid consent) can
also be qualified as lack of voluntariness for the same reason. In this broader view, error, mis-
representation and fraud, on the one hand, and immaturity, mental handicaps or intoxication, on
the other, are examples which may invalidate consent because these also qualify it as involuntary.
In this chapter, we pursue the narrow conception of voluntariness focusing on coercion only
and make the case for a specific normative conception of voluntariness and coercion that does

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not refer to the preanalytic image of “coercion” as mere psychological pressure or the difficulty
of one’s choices (see 2.2–2.5). The question of whether a token of consent is voluntary cannot
be resolved solely by reference to non-moral facts.
(3) Moreover, this chapter focuses on “horizontal” coercion between persons, setting aside
the general relationship of voluntary consent and coercion with regard to the legitimate author-
ity of the state, which has been discussed in political philosophy at least since Hobbes, and also
the question of whether even justified, freedom-enhancing legal systems backed by democratic
states are necessarily coercive structures because “right and authorization to use coercion [. . .]
mean one and the same thing”, as put by Kant (1996 [1797]: 26).
(4) “Consensual minimalism” (Wertheimer 2003: 130) refers to the idea that B’s valid con-
sent is necessary and sufficient to render it permissible for A to proceed (while in some legal
systems consent is thought to be necessary, but not sufficient to render certain acts permissible,
as in the English doctrine of consent to bodily harm, for example). In any case, B’s valid consent
can only make A’s action permissible with regard to B’s rights and interests. Consensual actions
may still be regarded as wrong or even impermissible if they generate negative externalities to
third persons or to collective goods (Wertheimer 2003: 131). In this sense, the concept of valid
consent can capture a lot (albeit not all) of what is morally and/or legally impermissible, but not
much more. When A acts upon B’s valid consent, B is not wronged, i.e. her rights are respected.
This does not necessarily imply that the act B has consented to fosters her long-term interests
or that this act makes A, B or both of them more virtuous persons or that the world will be
better or a more just place.

19.2 Consent and coercion

19.2.1 Voluntariness and coercion

At least for legal purposes, consent must include a performative component, i.e. some token of
consent, a verbal or non-verbal act of authorization (Feinberg 1986: 173). Coerced tokens of
consent are invalid. The question is when we have reasons to apply this principle. What exactly
are the truth conditions for coercion claims?
Coercion as the antonym of voluntariness is clear in regard to acts of pure force (vis absoluta),
i.e. direct use of force or constraint applied to the body without the involvement of any willed
cooperation or acquiescence on the victim’s part. However, the notion of “involuntariness”
not only comprises non-voluntary (non-volitional) movements (as in cases of vis absoluta and
reflex actions or spasms) or non-voluntary acts (where the will is impaired or overborne by
inner conditions such as compulsive behaviour, phobia or psychosis), but also cases of constrained
volition where, in a specific sense, the agent’s choice is against her will (vis compulsiva, coercion
via the will).
Since Aristotle’s ambivalent and eventually undecided analysis of whether “the things that
are done from fear of greater evils” (vis compulsiva) are done voluntarily or involuntarily (Aristotle
1908: 1110a, b), there has been a discussion of the so-called coactus volui-paradoxon (cf. Gutmann
2001: 34–66), which results from the fact that the coerced person can still act deliberately under
coercion in the form of vis compulsiva. Even in a “your money or your life” situation, B, the
victim of an armed robbery by A, has a choice and can act upon a preference for realization of
one of the two possible consequents. Nevertheless, she is not acting voluntarily when she hands
over her money or consents to the robber taking it. Therefore, Frankfurt’s suggestion that coercion
which bars the ascription of moral responsibility and invalidates consent must affect the victim’s
ability to choose by triggering desires and motives that are beyond her control (Frankfurt 1973: 77)

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does not seem convincing. Rather, under vis compulsiva, B can still choose, but A’s coercive
threats imperil B’s autonomy by making B’s choice responsive to A’s reasons or will, and not to
her own (Wertheimer 2003: 126).

19.2.2 Coercive proposals and baseline approaches

Coercive proposals are the main form in which we face coercion that compromises the volun-
tariness and validity of consent. According to Alan Wertheimer’s two-pronged definition, which
(as a philosophical abstraction derived from an analysis of legal institutions (see Wertheimer
1987: part 1)) still sets the current standard in the theory of coercion, A coerces B “when (i) A
proposes to make B worse off relative to the appropriate baseline if she does not acquiesce and
(iia) it is reasonable for B to succumb to A’s proposal rather than suffer the consequences [. . .]”.1
Let us take a look at (i) first (we return to (iia) in 2.8). Both threats and offers are bi-conditional
proposals with the same basic structure: A claims that (A will bring about consequences X if and
only if B does Y). Threats and offers have the common elements that each can make some
actions more or less attractive for the addressee. In both cases, the motivational effect on the
recipient is induced by the fact that she prefers the realization of one of the two possible consequents
(X/Y or non-X/non-Y, respectively). With regard to (i), the central idea is that (successful)
threats coerce while offers don’t; relative to the appropriate baseline, (credible) threats worsen
the coercee’s situation prior to the proposal, while offers do not. When the armed robber A
demands B’s money or B’s life, B goes from being able to have both to being unable to have
both. This option has essentially become foreclosed. With an offer, regardless of how attractive
it is, the case is different: whether the employer A offers B a job for $ 1 (minimum wage laws
aside), $ 10 or $ 500 per hour, B receives an additional option while retaining the option to
decline and stay in her status quo ante (transaction costs, i.e. the costs and burdens of choosing
and processing information not taken into account).
From Nozick’s seminal article onwards (Nozick 1969), there has been intense discussion on
how this “baseline relative to which B may not be worse off” if she rejects A’s proposal must
be defined in order to distinguish coercive proposals (conditional threats) from non-coercive
proposals (conditional offers). Nozick’s definition of this baseline as the “normal or natural or
expected course of events” (Nozick 1969: 447) is deliberately ambivalent in regard to whether
it refers to normative (moral or legal) or non-normative (empirical) criteria. At closer look,
we see four main possibilities: (1) A may propose to make B worse off than B’s status quo;
(2) A may propose to make B worse off than what B can “statistically” expect in the normal
course of events; (3) A may propose to make B worse off relative to what B subjectively expe-
riences or prefers as her baseline (Nozick 1969: 460; Gorr 1986: 398; see also Rhodes 2002);
(4) A may propose to make B worse off relative to where B has a right to be vis-à-vis A. The
latter may be called a normative (or moralized) baseline (Wertheimer 2003: 165).
These baselines will often converge. In many hard cases, however, they do not, so a theory
of coercion has to reach a decision in respect of this. The current state of debate (cf. Anderson
2015; Miller & Wertheimer 2010) seems to assess possibility (4) as clearly superior to the others.
In possibility (1), it is unclear how B’s status quo is to be defined. If taken at face value as the
factual status quo, option (1) would yield the counterintuitive result that a seller makes a coercive
threat when she merely raises the price of her commodity (Frankfurt 1973: 70; Zimmerman
1981: 126). Neither can mere factual or statistical expectations as in possibility (2) carry the
normative weight of attributing responsibility and deciding about the validity of tokens of con-
sent. A husband who beats his wife once a week and proposes to spare her the next time if she
consents to Y (cf. also Nozick’s (1969: 450–1) slave case) does not threaten to make her worse

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off than her status quo or than what she can factually expect in the normal course of events; this,
however, does not seem to provide a reason for considering her consent voluntary and valid.
Option (3) does not seem very promising either. Athough Nozick (1969: 462) has a point in
saying that, while a formally rational person would normally be willing to go from the status
quo ante, i.e. the pre-offer stage, to the offer stage, she would not be willing to go from the
pre-threat stage to the threat stage, this does not do the trick because (a) recipients like the
abused wife in our example, who are already in an overall coercive situation in the pre-proposal
stage, will nonetheless be disposed to go from the pre-proposal stage to the proposal stage. Vice
versa, (b) most recipients would just as little want to go from the status quo ante to the offer
stage in cases where the transaction partner makes a worse (utility-reducing) offer for further
transactions, e.g. by legitimately raising the fees for his future services. When landlord A has the
right to raise the rent for B’s flat every three years (or terminate the contract), B’s acceptance of
the landlord’s proposal to prolong the contract with the increased rent for another three years
cannot be held as involuntary and therefore invalid just because B would have preferred to stay
in the pre-offer stage (and continue to pay a lower rent). So, with possibility (3), the distinction
between coercive threats and legitimate hard bargaining gets lost. A fully preference-based
baseline account cannot avoid seeing coercion in many situations where not only our pre-theoretic
views (Anderson 2015: sub 2.3), but also our normative principles and practices would deny it.
At least for the attribution of legal responsibility and answering the question of whether a token
of consent is valid and transformative, we need an objective criterion which is not at the discre-
tionary power or in the subjective experience of the consenting person alone, as is the case in
(3). For this reason, Nozick’s suggestion (1969: 451) for using the baseline preferred by the
recipient of the proposal when the “predictive” (3) and the “moral” (4) baselines diverge is not
convincing.2
This leaves us with possibility (4) as the most plausible one: A’s proposal is coercive if A
indicates that she will make the recipient B worse off than B ought to be if A’s demand is
denied. This approach implies that a coercion claim is never a value-free or empirical claim.
Although coercion has descriptive features (see Nozick 1969: 441; Raz 1986: 148; Gutmann
2001: 66–91), the truth of a coercion claim requires normative (moral or legal) judgements at
its core.3

19.2.3 Coercion and rights

The normative (moral or legal) judgements at the core of a coercion claim are, however, of a
special sort: A’s proposal is coercive – and hence nullifies the transformative power of consent on grounds
of coercion – if and only if A proposes to violate B’s rights (or fails to fulfil a rights-based obligation to B)
should B reject A’s proposal.
Starting with Pufendorf (1672: III ch. 6, § X), the central insight of coercion theory is that
any attempt to explicate the notion of coercion as a criterion for the moral and legal validity of
the coercee’s consent in abstraction from the rights and obligations of the parties involved must
fail (Ryan (1980: 492) calls this the “State of Nature Fallacy”). The appropriate baseline for
telling threats apart from offers is the recipient’s (moral or legal) rights (Wertheimer 1987: 217),
simply because there is no other form in the realm of morals (and law) than the concept of rights
that could better serve to define the mutual legitimate expectations of the persons involved.
This approach seems especially promising for legal analysis, given the structural significance of
individual rights for our legal systems and the fact that the concept of subjective rights “is probably
the most important achievement of the evolution of law in modern times” (Luhmann 2004: 76
and 269). However, A may propose to violate B’s moral rights without proposing to violate B’s

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legal rights (or vice versa), so we have to distinguish between proposals that are “morally coercive”
and those that are “legally coercive”, thus making A’s consent morally invalid, legally invalid,
or both. Vice versa, B’s consent is voluntary (in the moral and/or legal sense) in all the cases
when she succumbs to a proposal that A has the (moral and/or legal) right to make (Wertheimer
1987: 301). So, in the final analysis, the matter to be assessed “is not the situation of the person
consenting, but the behavior of the person obtaining the consent” (Radcliffe-Richards 2010: 295).

19.2.4 The normative core of the concept of voluntariness

For this reason, voluntariness is a normative concept which does not concern itself exclusively
with the consenter’s situation (beliefs, options, capacities). Above all, it cannot be adequately
explained in descriptive psychological terms. In order to invalidate B’s consent, it is necessary,
but not sufficient, for B to feel “under pressure” to consent or to find the alternative to acqui-
escence to be grim, distasteful or painful (which, by and large, is the preanalytic image of “coer-
cion”) (Wertheimer 2003: 151; Murphy 1981: 84–5). This is true with the exception of cases
where severe psychological pressure affects the addressee’s ability to choose at all, i.e. her com-
petence. Even voluntary decisions between Scylla and Charybdis are possible. If B is diagnosed
with cancer and has to choose between an early death and painful chemotherapy to avoid death,
she can voluntarily exercise the second option and give valid consent to the therapy proposed
by her oncologist A (Wertheimer 2003: 173). Hard choices are not incompatible with valid
consent (Murphy 1981: 83–5). Therefore, the fact that a person reasonably believes that she has
“no choice” or “no reasonable alternative” but to opt for consenting is not sufficient for the
conclusion that her consent is not valid, as long as “having no choice” or “having no reasonable
alternative” means that it would not be rational for the agent to forgo a bad option for an even
worse one. Offers that one cannot reasonably refuse in this sense are still offers because the “dic-
tates of reason” do not coerce. Neither do moral norms, virtues or role models the agent iden-
tifies with: a father who decides to donate part of his liver for his critically ill child because it
seems evident to him that this is what a person like him who strives to be a good father does to
save the child in the absence of other options, acts perfectly voluntarily. So even “volitional
necessities” in Frankfurt’s sense (Frankfurt 2006: 44), i.e. values and principles with which we
identify wholeheartedly, ends that we cannot but accept and whose rejection is unthinkable for
us, are perfectly compatible with acting and consenting voluntarily. On the other hand, the
thesis that voluntariness cannot be adequately understood in descriptive psychological terms also
explains why a positive attitude towards the chosen option is not an essential component of
voluntary consent. We do not have to desire what we choose (e.g. chemotherapy) in order to
choose it voluntarily. And finally, coercion cannot be defined by a psychological criterion which
only recurs to the degree of pressure experienced by the addressee of a proposal while neglecting
the difference between threats and offers (as Joel Feinberg does (1986: 199 et seq.) by calculating
the “differential coercive pressure” or “total coercive burden” of the proposals; cf. also Held
(1972: 55)). Offers are never coercive, even if they seem to be without eligible alternatives or
are so seductive that they create motivational force or “pressure” quantitatively similar to that
associated with coercive threats, and will, with a high degree of probability, induce the consent
of the addressee. In view of the foregoing, it becomes equally clear that voluntariness as a nor-
mative notion is a binary concept; a token of consent is either voluntary or it is not. Voluntariness
does not come “in degrees” (for a different approach see Walker, this volume, Chapter 12).
Voluntariness as a normative concept without reference to psychological pressure or the
intricacy of one’s choices (cf. Murphy 1981: 83–5 and 44; Scanlon 2001: 114) is not only a
conceptual argument, but also one about a core normative function of self-determination and

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the value of choice. If hard choices were not voluntary ones, people could not give valid con-
sent in situations where entitlement to choose for oneself matters most. The need for morally
transformative consent arises especially in critical life decisions that can have a dramatic life-
altering impact, in situations in which we face hard (or incommensurate) choices or find our-
selves under serious constraints or in dire straits. Self-determination is sometimes reduced to
choosing between the worst and the second worst possibility or to consenting to transactions that
will move one from a very unfortunate situation to an only slightly better one. It is highly ques-
tionable whether any principle of respect for persons and their autonomous choices (or whether
the goals of enhancing their autonomy or their welfare) would be compatible with denying
persons the transformative power of their consent under such circumstances. And, finally, if we
were not entitled to decide for ourselves in such situations, then who would decide for us?

19.2.5 Coercive offers?

Although quite a number of authors claim that conditional offers, too, can be coercive4, a plau-
sible concept of coercive offers has not yet been put forward (Gutmann 2001: 149–200). Many
of the examples given can be analyzed as coercion simpliciter, e.g. Zimmermann’s examples
(1981: 133) in which A makes an offer to B while actively preventing B from obtaining a situ-
ation for herself that would be better than the situation A proposes (thus violating B’s rights).
Most authors who think that offers can also be used coercively, however, describe instances of
exploitation (cf. Frankfurt 1973: 71–2; Lyons 1975: 33; Benditt 1979; McGregor 1988–9). This
is also the case with Feinberg’s paradigmatic example of the lecherous millionaire A who makes
the proposal to B that he will pay for the expensive surgery that is the only possibility for saving
her child’s life, provided that she become his mistress for a period. Feinberg (1986: 229 and
233), recurring to a psychological account of involuntariness, argues somewhat paradoxically
that, despite not being responsible for the situation B finds herself in and having no duty to help
her, A makes a freedom-enhancing but nevertheless coercive offer. The moral problem of such
an offer, however, does not lie in the fact that it undermines voluntary consent (see 2.7).
Inducements per se, including economic inducements, cannot be a general problem for
morally transformative consent (provided that they do not, in themselves, severely distort the
addressee’s capability for judgement), as long as our notion of personal autonomy fosters the
idea that being an autonomous agent includes, among other things, the ability to pursue one’s
subjectively defined ends rationally (cf. Radcliffe-Richards 2010: 289). There are bad or even
toxic offers – seductive offers (inducing a person to make a choice that does not advance her
long-term interests, all things considered, cf. Wertheimer 2003: 126), exploitative (see below, 2.7),
harassing, corrupting or even humiliating offers. They may be criticizable for being seductive,
exploitative, harassing, corrupting or humiliating. But, as long as they are offers (i.e. as long as
they do not threaten to violate a right of the recipient), they add to the range of options avail-
able to B when measured against her normative baseline and do not propose to make B worse
off relative to this baseline if she does not acquiesce. All a (competent) recipient has to do is to
reject such an offer without losing anything she is entitled to. Even when such offers exert high
motivational force and will very probably lead to the action of B desired by A, they are not
coercive and thus cannot invalidate B’s consent on account of lack of voluntariness.

19.2.6 Voluntariness and injustice

In a just world, people would have better options to choose from and face less hard choices.
And if “the ideal of personal autonomy”, which means that people should be the authors of

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their own lives, “requires not merely the presence of options, but of acceptable ones” (Raz 1986:
205), people would also lead more autonomous lives. So the ideal of autonomy requires social
justice. For the time being, however, we do live in societies with unequal and unjust basic
structures (Rawls 1971: 3). We therefore need a theory of voluntariness and coercion that can
be applied to the non-ideal circumstances in which we find ourselves. For this reason, a justifi-
able concept of voluntary (and hence, valid) consent will “hold that, from A’s (and B’s) perspective,
B’s circumstances – even if unjust – may properly define the background against which their
transactions occur and from which we must evaluate their moral [and legal] status” (Wertheimer
2003: 177, 1996: 270). There is a distinction to be made between the problems in our objective
circumstances in which choices are made and the problems in the quality of the choice that we
are making, given the background conditions. Social inequality or inequality of bargaining
power (see McGregor 1988–89: 25) per se do not invalidate consent although we often agree
to transactions we would reject under more just or equal background conditions. When unjust
background conditions which cannot be changed here and now are the problem, an offer that
allows its addressee to improve on those background conditions is always at least one option
more for her and very often the best option available.
Again, this is not only a conceptual argument, but also one about a core normative function
of consent and personal autonomy and about the social inclusiveness of our institutions. It seems
important to respect a person’s capacity to make decisions under the circumstances in which she
finds herself (Wertheimer 2003: 128). If being in a weaker position than one’s partner in a
transaction were to imply that one could no longer give morally transformative consent or enter
a contract (which are both instances of exercising a normative power to bring about a change
in the nexus of rights and duties within a relationship; cf. Bix, this volume, Chapter 20), this
would mean adding incapacitation to inequality. We would have to create procedures for proxy
consent within a system of general tutelage for the majority of people, amounting to their
extensive exclusion from the institutions of our autonomy-orientated society.

19.2.7 Voluntariness and exploitation

Although voluntary consent presupposes neither equality nor equal bargaining power between
the parties, nor fair background conditions for their transaction, there is one complex normative
concept whose consequences for the validity of consent merit further exploration. This is exploita-
tion (in its strictly analytic, not in its Marxian meaning), i.e. a situation where a person takes
unfair advantage of someone else’s vulnerabilities or desperation to strike a deal (cf. Wertheimer
1996; Zwolinski & Wertheimer 2016). A transaction may be substantively unfair in reference to
the outcome of the transaction (“excessive benefit”) or procedurally unfair, implying that there is
some sort of defect in the process by which the outcome has come about (in this sense, coercion
can be seen as a subform of exploitation, albeit with special structural features).
The crucial point, however, is that exploitation is generally compatible with voluntary
action (on both sides) and hence with voluntary consent because, in its paradigmatic cases
(“consensual exploitation”, see Wertheimer (1996: 14)), it involves offers by which the exploiter
proposes to make her victim better off if the victim does as the exploiter proposes (Zwolinski &
Wertheimer 2016: sub 2.2; Zwolinski, this volume, Chapter 14). Therefore, exploitative pro-
posals do not coerce, and the exploitee can give valid and “fully voluntary consent to the
exploitative behaviour”.5
Moreover, exploitation is a tricky and even somewhat paradoxical (Ferguson 2016) concept,
with a moral force less clear than coercion since it can be mutually beneficial. It may even be
harmful for vulnerable individuals to be protected from being exploited because this often

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means that they are deprived of one (or even the only) possibility for improving their situation
by engaging in a mutually beneficial (albeit unfair) transaction, while preventing exploitative
transactions by itself does nothing to alleviate this vulnerability or to change the unfair back-
ground conditions (cf. Radcliffe-Richards 2010: 295). Finally, it is far from clear which forms
of exploitation should count as a kind of wrong that can justify state intervention (Wertheimer
1996: 29 ff.).
Using another person’s vulnerability for one’s own benefit is, in general, unfair and wrong
(and it may well be appropriate for the exploitee A to issue complaints against the exploiter B,
even though A has consented). This constitutes good reasons for the law to set limits to such
practices. The motive for this, however, is not that voluntary and valid consent is not possible
under exploitative conditions. Therefore, rational legal systems have to develop different insti-
tutions to translate into doctrine the structurally different concepts and foci of coercion, on the
one hand, and exploitation, on the other. Within different national legal systems, coercion, on
the one hand, and exploitation, on the other, are currently being addressed in a rather non-
systematic way by a plethora of theoretically blurry concepts, for example by different legal notions
of “coercion” or “duress” and by certain aspects of “undue influence” and “unconscionability”
(or “good morals”, in German law)(cf. Bigwood 2004; Gutmann 2007; Bix, this volume,
Chapter 20). One main task of a legal theory of consent aiming at doctrine is the reconstruction
of these legal notions along the lines of the different analytical structures of the two concepts of
coercion and exploitation. However, The Draft Common Frame of Reference for a European Private
Law (Von Bar & Clive 2009: vol. I, Art. II–7:206 and 207) (with regard to contracts) clearly
distinguishes between threats

Art. II.–7:206: Coercion or threats: (1) A party may avoid a contract when the other
party has induced the conclusion of the contract by coercion or by the threat of an
imminent and serious harm which it is wrongful to inflict, or wrongful to use as a
means to obtain the conclusion of the contract. (2) A threat is not regarded as inducing
the contract if in the circumstances the threatened party had a reasonable alternative.

and exploitation, requiring a combination of procedural and substantive unfairness:

Art. II.–7:207: Unfair exploitation: A party may avoid a contract if, at the time of the
conclusion of the contract: (a) the party was dependent on or had a relationship of trust
with the other party, was in economic distress or had urgent needs, was improvident,
ignorant, inexperienced or lacking in bargaining skill; and (b) the other party knew or
could reasonably be expected to have known this and, given the circumstances and
purpose of the contract, exploited the first party’s situation by taking an excessive bene-
fit or grossly unfair advantage.

Nevertheless, a new approach in consent theory may jeopardize this distinction. Miller & Wertheimer
(2010) try to answer the central question of whether a consent transaction between A and B is
morally transformative and, in particular, whether a consent transaction renders it permissible
for A to proceed – however, not with the prevailing theory of valid consent, which they call
“the lock-and-key/autonomous authorization model (LK/AA) of consent transactions” and
which, according to the authors, fails to do justice to the bilateral nature of consent transactions.
Instead, they have developed a “fair transaction model” of consent transactions that claims that
A is only morally permitted to proceed on the basis of a consent transaction “if A has treated B
fairly” (Miller & Wertheimer 2010: 81) and responds in a reasonable manner to B’s token or

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expression of consent (or what A reasonably believes is B’s token or expression of consent). As the
requirement of “treating a person fairly” also specifies refrainment from all instances of consen-
sual exploitation (Miller & Wertheimer 2010: 103–4), consent given in coercive circumstances
and consent given under exploitative circumstances are both instances of non-transformative
(and hence invalid) consent. This result is, however, derived by neglecting the structural nor-
mative differences between coercion and exploitation, thus disregarding the interests of all
persons who voluntarily prefer an unfair, but valid, transaction to no transaction at all. In any
case, the “fair transaction model” of consent transactions is not a theory about distinguishing
between voluntary and involuntary consent.

19.2.8 Coercion and resilience

Not all threats coerce, as threats may be wrongful, but too trivial to provide a good reason to
acquiesce. Therefore, the question is when the person giving consent is entitled to yield to the
coercer’s proposal and thus be released from the normal moral and legal consequences of her
consent (Wertheimer 1987: 267). So, given A’s proposal is a threat, a second criterion for coer-
cion is that it must be “reasonable for B to succumb to A’s proposal rather than suffer the con-
sequences” (see above, 2.3). We would not hold B’s consent to a sexual act with A involuntary
just because A threatened to destroy B’s favourite coffee mug otherwise. This resilience criterion
not only excludes trivial threats where we expect the addressee to stand his ground, but also
generally addresses the question of whether there was another reasonable (or tolerable) alterna-
tive for the coercee. Sometimes (e.g. when our partner threatens not to perform our contract)
the legal system does provide us with such an alternative (e.g. to sue for breach of contract).
This “choice prong” of the two-pronged theory of coercion is generally applied in a contextu-
alized way by the law, especially when it comes to duress or necessity as a criminal defence
(cf. Christie 1999; for American law on criminal responsibility, confessions, plea bargaining,
blackmail, contracts and consent to searches and medical procedures in general, see Wertheimer
(1987: part 1)). At the same time, the two-pronged theory of coercion serves as a general prin-
ciple in the law of contracts (cf. 2.7; Bix, this volume, Chapter 20), cf. Art. II–7:206 of the Draft
Common Frame of Reference for a European Private Law (“A threat is not regarded as inducing the
contract if in the circumstances the threatened party had a reasonable alternative”). In general,
this “choice prong” criterion also reflects voluntariness as a normative concept with regard to
what we rightfully expect of the recipient of a potentially coercive proposal. While there are
few legal examples where the reasonable-alternative test is applied in cases of one party consent-
ing to medical procedures, the question of what degree of resilience shall be expected from the
victim plays a contested role in the definition of different offences against sexual autonomy
(Hörnle, this volume, Chapter 21).

Notes
1 For the whole definition, see Wertheimer (2003: 165, 1987: 172). For non-baseline approaches to
coercion, cf. Anderson (2015: sub 2.5); for a different attempt that tracks the specific form of power
associated with “coercion” within a non-moralized, coercer-focused approach to coercion, cf. Anderson
(2010).
2 For other descriptive (non-evaluative) analyses of coercion that face difficulties in explaining the legal
or ethical significance in coercion thus conceived, see e.g. Gorr (1986) and Rhodes (2002).
3 Gunderson (1979), Ryan (1980), Raz (1986: 148), Wertheimer (1987: 7 et seq.), Berman (2002).
4 Cf. Held (1972), Lyons (1975), Benditt (1979), Zimmerman (1981), McGregor (1988–9), Feinberg
(1986: 229).
5 Feinberg (1990: 176), cf. Wertheimer (1996: 248 ff.), Jansen & Wall (2013), Radcliffe-Richards (2010).

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Thomas Gutmann

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Related topics
Ch.8 Valid consent
Ch.12 Consent and autonomy
Ch.14 Exploitation and consent
Ch.20 Consent and contracts
Ch.21 Rape as non-consensual sex
Ch.24 Informed consent

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