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This paper will discuss the importance of autonomy and consent in the liberal discourse. It
considers that consent is a necessary feature of liberalist values such as freedom, equality and
an individuals right to self-development. The definition and scope of consent is inherently
problematic. Liberalism acknowledges that coercion and involuntariness are important factors
affecting the nature of consent. The extent of this effect, however, is contested. This paper
considers that liberalism fails to give appropriate recognition to power disparities underlying
consent. It outlines the radical critique of liberalism and in particular highlights the
scholarship of radical feminists in relation to sexual offences. This paper concludes that while
the organisation and implementation of an adaptive and responsive model of consent may be
difficult, it is an important undertaking in advancing individual liberty.

PART I The Value of Consent in Liberal Thought

The importance of consent in liberal thought is an extension of the fundamental values of
liberalism. While liberalism is an inherently slippery construct to define, it is accepted that
both the classical and modern discourses favour principles of freedom and equality. 1 Classical
liberalists, such as Locke and de Tocqueville focus on notions of limited government, the
freedom of contract and the responsibility of the individual for their own fate. Modern
liberalism, as exemplified by Hobbes,2 Mill and Rawls, is similarly interested in individuality
but is more distinctly concerned with cultural and moral progress. Notions of social justice in
modern liberalism, particularly in the scholarship of Rawls, are underpinned by the idea that

1 Alan Ryan, Liberalism in Robert E Goodin, Philip Petit and Thomas Podge (eds), A Companion to
Contemporary Philosophy (2012) 360, 362.
2 Evelyn Keyes, The Just Society and the Liberal State: Classical and Contemporary Liberalism and
the Problem of Consent (2011) 9(1) The Georgetown Journal of Law and Public Policy 1, 5.
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individuals have a right to self-development.3 Flowing from this right to self-development

are notions of individual autonomy and consent.
The increasing popularity of contractualist theories in political theory has placed emphasis on
the concepts of autonomy and consent. 4 Autonomy is frequently equated with liberty or
freedom of will. For Dworkin, it represents a second-order capacity of persons to reflect
critically upon their first first-order preferences... 5 Consent, as the mediator between
autonomy and social obligations, is therefore central to modern liberal thought not only as the
justification for the power of the state, but as a transformative action delineating permissible
and impermissible behaviours. Each individual has certain rights over their person. Their
consent to certain actions allows their control to be transcended. If valid consent is supplied,
these actions will be morally permissible within the liberal framework. Consent therefore
goes directly to the liberalists value of autonomy, and is an essential element in the
overarching themes of freedom and equality.
Defining consent is a difficult albeit essential undertaking. It may be easier to begin by
outlining what is not considered consent. Consent can be contrasted with assent and
acquiescence both of which imply agreement that is passive or averse.6 Similarly, consent is
distinguished from dissent. It can be argued that consent does not strictly relate to a mental
state, desire or choice as it is possible to imagine scenarios in which consent is given
without a corresponding desire for the consented act to occur. For example, a victim of
3 Alan Ryan, above n 1, 366.
4 Gerald Dworkin, Autonomy in Robert E Goodin, Philip Petit and Thomas Podge (eds), A
Companion to Contemporary Philosophy (2012) 443.
5 Ibid.
6 Keith Burgess-Jackson, Consent, Force and Coercion in Keith Burgess-Jackson (ed), Rape: A
philosophical Investigation (1996) 92.
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domestic violence may consent to sexual intercourse with the perpetrator of that violence in
order to prevent other harms being committed against herself or others. The victim does not
share a mutual desire with the perpetrator to engage in sexual intercourse but she consents
because she desires that an alternative outcome will not eventuate.
Importantly then, the law has identified that there are particular impediments to valid
consent.7 These include coercion and incapacitation, thereby implying that valid consent is
likely to refer to agreement that is free and informed. Indeed, this is the view assumed in law
and under statute. Consent is defined under the Tasmanian Criminal Code s 2A as free
agreement. This definition is further refined by examples in s 2A(a)-(i) of circumstances in
which an individual cannot be considered to freely agree to an act. These include instances
where consent is achieved through force, threats, unlawful detention, fraud or mistake.
Further, there will be an absence of free agreement if an individual does not communicate
their consent through words or actions, is overborne by the nature of another party, is asleep,
unconscious or heavily intoxicated, or is unable to understand the nature of the act to which
they are consenting. These considerations codify social sentiment regarding the importance of
individual autonomy by placing restrictions on when and how this autonomy may be
surrendered.
The effect of consent in transforming a serious criminal offence into a seemingly innocuous
behaviour is what makes consent a significant point of contention. 8 This is evidenced by the
act of sexual intercourse between two adults. Where one party does not consent to having sex
with the other, the act of sexual intercourse may constitute rape, a crime punishable by

7 Ibid.
8 Ibid 93.
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imprisonment.9 In the presence of valid consent however, the act of sexual intercourse is not
only legally acceptable, but socially desirable. 10 Drawing a line between what unequivocally
is or is not consent is therefore a contiguous task for the liberalist. If perpetrators of sexual
violence of this kind are not apprehended, the state fails to ensure the liberty of victims.
However if these perpetrators are in fact wrongfully convicted, the state wrongfully restricts
the liberty of the accused. The competing liberties of the parties concerned are therefore
important considerations within the liberal discourse.
The elements of coercion and voluntariness in the context of consent and autonomy link back
to the foundations of liberalism exemplified by Locke, Hobbes and Rawls. The scholarship of
Locke, flowing from natural law theory, identifies the individuals right to equality and
liberty.11 This is the underlying justification for a civil society that governs and protects the
interests of each individual member. This notion is also resonant of a Hobbesian state of
nature in which there are no moral values.12 Co-operation cannot occur through appealing to
high-order moral values such as fairness, and therefore society is reliant on consent and
agreement. A state of nature was also postulated by Rawls, who used this notion as a thought
experiment to develop his theory of justice. Rawls reasons that in a state of nature,
individuals are naturally inclined to desire the protection of their liberties. 13 Consent is the
means through which civil society exists and operates to protect these liberties.

9 See the crime of rape, Criminal Code 1924 (Tas) s 185.

10 Keith Burgess-Jackson, above n 6, 93.
11 Evelyn Keyes, above n 4, 4.
12 Ibid 5.
13 Alan Ryan, above n 1, 366.
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PART II Power Disparities and Consent

The contemporary model of consent under the Tasmanian Criminal Code has been recently
adapted to reflect a more comprehensive notion of free agreement. 14 Prior to the amendments,
and perhaps still in practise, consent has a much broader application particularly in the
context of sexual offences.15 It has traditionally been held that consent to sexual intercourse is
undermined only by threats to bodily integrity and by the use of force. 16 There has been little
acknowledgement of factors such as threats to economic harm or to coercive offers that
enlarge, rather than restrict, an individuals choices. This is exemplified by a scenario in
which one party offers to assist a more vulnerable party in exchange for sex. Liberal
discourse is unable to adequately reflect and respond to such power disparities and this is the
primary contention of the radical critique of liberalism.
Critiques of liberal theory are largely premised on the argument that liberal analysis of power
structures is deficient and subject to reification. Proponents of radicalism suggest that social
structures ought to be interpreted in light of moral values, rather than the other way around.
Otherwise, society suffers from a false consciousness, in which values such as autonomy and
consent are informed and restricted by social conventions. Social structures and power

14 Criminal Code Amendment (Sexual Offences) Act 1987 (Tas) and Criminal Code Amendment
(Consent) Act 2004 (Tas). Kate Warner highlights the focus of the reforms in defining consent in
positive terms as to more properly reflect the two objectives of sexual offences: the protection of
sexual autonomy and freedom of choice for adults, see Kate Warner Sexual Offending: Victim,
Gender and Sentencing Dilemmas in Duncan Chappell and Paul Wilson (eds) Issues in Australian
Crime and Criminal Justice (2005) 240.
15 See, for example, Helen Cockburn, The Impact of Introducing an Affirmative Model of Consent
and Changes to the Defence of Mistake in Tasmanian Rape Trials (University of Tasmania, 2012) 190.
16 Keith Burgess-Jackson, above n 6, 93.
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relations may directly or indirectly coerce a partys consent in a particular circumstance.

Patriarchal dominance within society has arguably resulted in the subjugation of women over
many centuries, such that a woman preceding the reforms of the Tasmanian Criminal Code
was held to have consented to sexual intercourse in the majority of circumstances where there
was an absence of physical violence. 17 Critics argue that by ignoring systematic coercion,
liberals assume consent where it does not exist, thus resulting in the oppression of the
fundamental liberties that liberalism seeks to protect.18
Coercion of this kind impacts on the voluntariness and the validity of consent. This is aptly
demonstrated by patriarchal influences on the moral and legal parameters of sexual
intercourse. The inequality of men and women in society creates a power disparity, in which
men as a collective possess greater power to which women are vulnerable and dependent.
Requiring consent in a sexual relationship reflects a value for personal autonomy and is a
prerequisite in an equal partnership.19 There is no such respect for autonomy where one party
exerts physical, emotional or financial dominion over more vulnerable parties, causing those
parties to assent to sexual intercourse. This disparity in bargaining power creates a
circumstance prone to exploitation and coercion at both individual and systematic levels. For
the radical, liberalism tolerates a rape culture by placing only limited requirements for
voluntary consent.20
For the radical, liberalism is inherently an ideology. It arises from, and empowers a social
elite while masking coercion and the absence of freedom. For example, while liberalism
17 Ibid.
18 Ibid 100.
19 Joan McGregor, Consent and Autonomy in Joan McGregor (ed), Is It Rape? (2005) 100, 107.
20 Keith Burgess-Jackson, above n 6, 103.
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acknowledges the right of the individual to develop and express their sexual autonomy
(without causing harm to others), the liberal discourse lacks a framework through which to
critically reflect upon how societys perception about sexuality may be shaped by social
myths with little or no foundation in biology or psychology.21 The radical feminist argues that
such myths have alienated women, and positioned man as the active seeker of sex and the
woman [as] the passive granter of sexual access to her body. 22 The effect of this relationship,
to generalise, is that the female is a means to an end for the male, ultimately damaging her
value as equal and autonomous individual.
Liberalism responds to the radical critique by acknowledging the doctrines weaknesses
before arguing that it remains superior to the alternatives. The liberal response is bolstered by
the present disjoint in the statutory and practical definitions of rape and consent in law. 23
While reforms of the Tasmanian Criminal Code s 2A attempted to further delineate the
meaning of consent in light of the social structures that may inform agreement, these reforms
have had limited success in practise. In the same light, Warner has recognised that while it
may be relatively simple to change the meaning of rape in the statute books, changing its
meaning in practise is another matter.24 The rationalisation of social understandings with the
prescriptions of the legislature is evidently an inherently difficult task. The liberal discourse
with its seemingly simple definition of consent may in fact uphold the liberties of the
individual with greater success than the radical feminist. It affects an efficient and expedient
21 Joan McGregor, above n 19, 110.
22 Ibid.
23 Peter D. Rush in Clare McGlynn and Vanessa E. Munros (eds) Rethinking Rape Law (2010) 238.

24 Kate Warner Sexual Offending: Victim, Gender and Sentencing Dilemmas in Duncan Chappell
and Paul Wilson (eds) Issues in Australian Crime and Criminal Justice (2005) 247.
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legal process that leads to clear and predictable outcomes. This process ensures a degree of
individual autonomy and control for all parties involved.

In conclusion, consent is important in liberalism because of its inherent association with the
cornerstones of liberal thought. The values of liberty and freedom extend to the notions of
individual autonomy and a right to self-development. Consent is a feature of individual
autonomy and mediates between the freedoms and obligations of all members of society. The
definition and scope of consent is impacted by a range of factors. Traditionally, and perhaps
from a liberal viewpoint, these factors have been strictly limited to threats and physical force.
It has failed to consider, in any significant depth, the power disparities that inform consent.
This is the central contention of the radical critique of liberalism, including the radical
feminist discourse. This paper has outlined liberalisms predisposition for masking
oppression and creating a false consciousness. However it also began to explore that a
narrow definition of consent may lead to greater expediency at law, and therefore go some
way in protecting the liberties of the parties involved in a legal dispute.