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A Nod's as Good as a Wink: Consent, Convention,

and Reasonable Belief

David Archard

Legal Theory / Volume 3 / Issue 03 / September 1997, pp 273 - 290

DOI: 10.1017/S1352325200000793, Published online: 16 February 2009

Link to this article: http://journals.cambridge.org/abstract_S1352325200000793

How to cite this article:

David Archard (1997). A Nod's as Good as a Wink: Consent, Convention, and
Reasonable Belief. Legal Theory, 3, pp 273-290 doi:10.1017/S1352325200000793

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Legal Theory, 3 (1997), 273-290. Printed in the United State* of America
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"A NOD'S AS GOOD AS A WINK":

Consent, Convention, and
Reasonable Belief

David Archard
University of St. Andrews

Consider the following examples of behavior by Smith:

1. Smith, seated at her restaurant table, gives an order to the waiter,

2. Smith gets into a cab and names a destination;
3. Smith agrees to Jones's suggestion that they go back to Jones's apartment for
a few drinks;
4. Smith casts her vote in some election.

In each of these instances what can Smith be understood as consenting to?

Is she consenting to (1) pay the bill for whatever meal she orders; (2) pay
the fare for the journey to her named destination; (3) sexual intimacy with
Jones; and (4) accept the authority of whatever individual or political part)'
is elected? The fact that Smith does not actually express her consent to each
of these states of affairs or outcomes need not mean that she is not giving
her consent to them. The idea that individuals can give their consent in
ways other than by means of a formal verbal expression of agreement is a
familiar, if controversial, one.
In the case of voting it has been argued that someone who voluntarily
participates in an election by expressing her preference for some candidate,
and who knows what she is doing, may be taken as thereby giving her
consent to the authority of whoever wins the election. Voting serves as a
good example of what John Locke called "tacit consent," and thereby
supplies the grounds of political obligation in the absence of any explicit,
public affirmation of loyalty.1 In the case of sexual consent, it has been
argued that there are social conventions whereby a woman's behavior
indicates her consent to have sex. Since rape is the crime of having sex with
a woman without her consent, and in the absence of any reasonable belief
1. This is the argument ofjohn Plamenatz, MAN AND SOCIETY (Vol. 1. Chapter 6,1%3), and
CONSENT, FREEDOM AND POIJTICM. OBLIGATION (1968). For discussion of his argument, ue
Frederick Sieglcr, Plamrnatz on Consrnl and Obligation, 18 PHIL Q. 25&-61 (1968) and John 1
J
Jenkins, Political CornenU 20 Pint- Q. 60-66 (1970). * '

273
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274 DAVID ARCHARD

that she did consent, the conformity of a woman's behavior to the conven-
tions in question would be sufficient to acquit a man of rape.2
The importance of establishing whether, and why, certain forms of behav-
ior may be understood as indicating consent to some state of affairs should
be obvious. I have two aims. First, I intend to criticize the argument given
for thinking that there are general conventions whereby a woman's behav-
ior may be interpreted as her consent to sex. Second, I wish to expose the
dangers of relying upon the view that there are such conventions. The
reasons cited for concluding that certain forms of behavior may be inter-
preted as the giving by a woman of her consent to sexual intercourse are
not good ones, but there are good reasons for not so interpreting her
behavior.

I. CONSENT

For the purposes of what will be argued here I will make four claims about
consent.3 First, the normative significance of consent is that it results in a
change in the moral situation. In particular, it does so by giving to the person
to whom consent is given a good moral reason to expect something from the
person who gives consent. If Smith consents toJones's doing of p, then Smith
has no right thatjones not do p, andjones may legitimately expect that Smith
will not stop her from doing p or will assist her in doing p.
Second, the normative situation may change in the same way as it would
if consent were given but without it being the case that consent had been
given. Smith's behavior may lead Jones to believe that Smith can be de-
pended upon to perform some further action. The legal principle of estop-
pel in pais holds that Smith would be liable for losses incurred by Jones in
acting in reliance upon the expectation that Smith would perform the
further action.4 Peter Singer has spoken of quasi-consent, since "under cer-
tain circumstances, actions or failures to act may justify us in holding a
person to be obliged as if he had consented, whether or not he actually
has."5 His own example is that of someone who participates in the practice
of buying rounds of drinks. He may be expected to buy a round when it is
his turn, and others in the group rely upon this expectation when they, in
turn, buy their round. He does not consent to the practice, but it is as if he
had when we come normatively to characterize the situation in terms of
expectations of behavior.

2. Douglas N. Husak & George C. Thomas III, Date Rape, Social Convention, and Reasonable
Mistakes, 11 LAW & PHIL. 95-126 (1992).
3. An excellent account of consent is provided by John Kleinig, The Ethics of Consent, 8
CANADIANJ. PHIL. SUPPLEMENT. 91-118 (1982).
4. This is the case as long as Jones did rely upon Smith's future performance, and Smith
intended Jones to expect the further act or was careless in allowing such an expectation to be
formed.
5. Peter Singer, DEMOCRACY AND DISOBEDIENCE 47 (1973).

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"A Nod's as Good as a Wink" 275

Third, the giving of consent is accomplished in and by an intentional act.

Consent is an act rather than a state of mind.6 I do not consent to p by
wishing that p, or by believing that p should be permitted. I consent to p by
some deliberate act. At issue in discussion of tacit consent and acts falling
under conventions is whether consent can be given by means of some
action other than the public expression of one's consent. Nevertheless, it is
taken for granted that consent is given, rather than simply assumed in the
absence of any sign to the contrary. I do not, normally, give my consent by
my failure to perform some action which indicates dissent. There are, to be
sure, circumstances in which being silent constitutes consent. If the chair of
some meeting announces that he will take silence to betoken agreement,
and pauses to permit any declaration of disagreement, then staying silent is
something I may be described as subsequently deciding to do, and doing.
But plainly this is not a mere failure or absence of voice.
Fourth, consent to something does not imply, on the part of the person
who gives her consent, the having of some favorable attitude toward that
thing. One can consent to p while having no view about p's desirability, or
even while disliking the thought of p. A favorite example to demonstrate
this is the father who consents to his daughter's marriage to someone he
strongly wishes were not his future son-in-law. The father accords the suitor
a right he wishes were exercised by almost anyone else. More pertinently, it
is obviously possible that someone should consent to sex that is not wanted.
I may willingly agree to have sex that I do not wish for. A wife may have
uncoerced, willing, and knowing sex with a husband in the sure expectation
that she will not enjoy it and desiring that it not take place. We may find
reason in this fact to condemn the sexual interaction, but such condemna-
tion does not derive from the interaction's lack of consensuality.
A contrast can be drawn here between assent and consent. It might be
thought that the terms are synonymous and that the single word "agree"
expresses this one meaning. But whereas consent is essentially agreement
to something, assent is essentially agreement with something. When I give
others my consent to holding a party in my house I agree that it may be held
there. When I assent to the holding of such a party I agree that holding it
there is a good idea. Further, my consenting to something makes a moral
difference to how I stand in relation both to that to which I consent and to
others to whom I have given my consent. This is so because prior to my
giving of consent I stood in a certain relation to some things and to other
people. It is different with assent. If I consent to have the party in my house
then I have no right that others not hold it there. Before I gave my consent
I did have such a right. If I assent to having the party in Smith's house (the
group who regularly hold parties are discussing and agreeing where the
next might be held) I do not thereby take away Smith's right that it not be

6. For a defense of the view that this is howJohn Locke understood consent, w Frank Snare,
Consent and Conventional Acts in John Locke, 13 J. HIST. PHIL. 27-36 (1975).

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276 DAVID ARCHARD

held there. It is for Smith to give his consent to holding the party in his
house, and this is because it is his house and not mine. Saying "I agree"
when it is the giving of consent is a performative utterance as saying "I do"
is in the context of the marriage ceremony. Saying "I agree" only as an
expression of assent is not.
Assent, unlike consent, can be both an act and a state of mind. I can
express my approval of p or merely wish for p. It is, of course, also true that
I can, in one act, simultaneously express my assent and consent. To the
question "Is it okay to hold the party in your house?" I reply "Yes," and
thereby both consent and assent to its being held there. I both agree to hold
it and agree with the idea of its being held. Yet I can consent to that which
I do not agree withthat is, do not assent to. If I consent to holding a party
in my house, I can do so while wishing I did not have to agree to the
proposal. I do so, for instance, because other people have, in the past,
played host, and I recognize the need to return the favor.
Dissent may be taken as the contrary of both consent and assent. In the
absence of further explanation or context an expression of dissent from p
is both an explicit withholding of consent to p and the signaling of one's
disapproval or dislike of p. Dissent, like assent, may be both an act and a
state of mind. But it follows from what has already been said that sincere
and willing consent may be given to that from which one dissents, in the
sense of not assenting to. It is also true, and importantly so, that consent
need not be given to that from which no dissent is expressed. When Smith
submits sexually to Jones in real fear of her life, she makes no protest but
she does not consent.

II. CONVENTIONS

Husak and Thomas have argued that there are social conventions by which
women express their agreement to sexual relations.7 They reason as follows.
Psychological studies reveal "courtship rituals" whereby women give nonex-
plicit encouragement to sexual advances from men, and thus indicate their
willingness to be sexually intimate with them. The use of such rituals is
understandable inasmuch as women are socialized not to be sexually for-
ward or explicit, and fear being characterized as promiscuous or "loose" if
they are. That women do regularly and systematically employ nonverbal
solicitation behaviors is a matter for empirical investigation. Crucially, the
law should concern itself with how behavior between the sexes is currently
patterned, and not seek to enforce an ideal of such behavior, which does
not conform to the reality. The crime of rape occurs if sexual intercourse is
unconsented, and the defendant acts upon an unreasonable belief that it

7. Husak & Thomas, su\na note 2.

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"/\ Nod's as Good as a Wink" 277
8
was consented. If a woman's behavior conforms to the social convention,
under which she is properly understood as consenting to sex, then a man
who proceeds to have sex with her is acting upon the reasonable belief that
she consents. He cannot be guilty of rape, even if, in fact, she did not
consent.
If diere are conventions of the kind suggested, then it would be impor-
tant to acknowledge their role in the reasoning of someone accused of rape.
To begin an evaluation of the question of whether someone would be
warranted in relying on conventions, let me introduce a number of relevant
considerations. The first is the extent to which the convention has a univer-
sally univocal meaningthat is, how many people understand die conven-
tion in the same unambiguous way. A convention can surely be more or less
well established. A group of people who have over a substantial period of
time regularly relied on the use of some convention (s) to infer consent in
their interactions and found no reason to believe any of dieir number
disputes the use or significance of these conventions can confidently and
reasonably rely on their future use to infer consent. It would be the same if
the use and sense of some conventions were publicly articulated and uni-
versally agreed.
The second consideration is the degree of harm that will result to persons
in consequence of anyone drawing false conclusions from a belief in a
convention. Proceeding to have sex with someone who does not consent
does considerably more harm than borrowing a pen without the owner's
agreement. It should, of course, be conceded that harm is done to someone
who is punished for relying on a convention that one might reasonably, if
mistakenly, believe to be used by everyone else. However, someone who
sincerely and reasonably believes another to consent to sex is not guilty of
rape even if the other does not in fact so consent. That makes it all the more
imperative to discover whether inference to consent via a convention is or
is not reasonable.
The third consideration is die question of whether it is possible to
confirm or confute any belief, which is due to reliance on a convention, in
a more direct and unmediated fashion. We should distinguish the question
of whether it is possible to do so from that of whether it is desirable to do
so. Conventions can be very useful. They provide us with a shorthand
language to communicate desires, intentions, and beliefs. Sexual interac-
tions, it is plausible to believe, are in general better conducted without the
need always and at every significant moment to ascertain directly whether

8. The requirement of mens rea is met if the defendant knows that the sexual intercourse is
unconsented. As to the question of whether it matters that the belief in consent is sincere, even
if unreasonable, there has been much debate, especially in the wake of the infamous Director of
Public Prosecutions v. Morgan [1975] case. I presume a prevailing agreement that his belief in
her consent, to give the required mens rea, must be both sincere and reasonable. I leave open
questions of how "reasonable" is to be construedwhether, for instance, it is relative to this
particular individual or to men in general.

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278 DAVID ARCHARD

one's partner is still willing to proceed. That can, of course, be necessary on

occasion, but it would be absurd to suggest it is required of a long intimate
and loving couple. The real question is whether, if the desirability of exclu-
sive reliance on conventions is in question, direct confirmation or refuta-
tion of what would otherwise be inferred from the convention is possible.
These three considerations together allow us to make the following
plausible, general claim. If a convention is not generally accepted, or if
there is disagreement concerning its existence, and if acting in reliance
upon it may result in great harm to someone, and if it is nevertheless
possible directly to confirm the belief inferred from acceptance of the
convention, then someone who acts in the light of a belief inferred solely
from the convention may be judged to behave unreasonably and culpably.
In short, it is wrong to rely exclusively on a risky and uncertain convention
when you don't have to.
Let me next make clear that a convention in this context is a rule whereby
a piece of behavior may be taken to mean something other, and more, than
this behavior would otherwise, and taken strictly in itself, mean. What in the
present context something is taken to mean is consent to something else.
The question is whether someone who does p may be understood to
thereby consent to q, where that understanding of what doing p means is
given by a rule or convention. The convention establishes a relationship
that would not otherwise and naturally exist. By natural rather than conven-
tional I mean that the relationship between p and q is one of logical
entailment or physical necessitation. I may be said, in the absence of any
convention, to consent to what must follow from an action that I voluntarily
and willingly perform.
Some have thus argued that I implicitly consent to what must follow from
what I expressly give my consent to. "A person consents to all the conse-
quences that he knows are necessary effects of his voluntary acts."9 If I
consent to your watching television in my house while I am away, I consent
to your consuming my electricity. However, if there is a risk or probability
of q from doing p then my consent to p is consent only to that risk or
probability of q. It is not consent simply to q. I agree to an operation that
carries the risk of death; I do not agree to die. A woman consents to some
degree of sexual intimacy with a stranger knowing that there is always a
possible risk of rape; she does not thereby consent to be raped. Importantly
also, and especially in the context of sexual interaction, I do not consent to
q by consenting to p even if q regularly follows p.
The conventions can be such that the meaning and behavior are related
arbitrarily, in the same way that, in linguistics, signifier and signified are
argued to be related. Imagine that Smith agrees in advance with an auction-

9. C.S. Nino, A Consensual Theory of Punishment, 13 PHIL. & PUB. AFF. 295 (1984), who quotes
Thomas Hobbes in support, "Whoever voluntarily doth any action, accepteth all the known
consequences of it," LEVIATHAN 218 (Michael Oakeshott ed., 1955).

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 "A Nod's as Good as a Wink" 279

e e r on a system of bidding signals, such that scratching her nose shall mean
a n increase in the bid of $500, a tugging of her ear lobe shall mean an
increase of $1,000, and so on. There is nothing about these actions as such
t h a t gives them this signification. They acquire them only in consequence
o f a convention agreed between Smith and the auctioneer.
Other conventions are such that the behavior and its meaning are related
less arbitrarily. There may be an obvious and direct connection. If I word-
lessly toss you the keys of my car, then you might reasonably take my action
t o signify agreement to your borrowing my car. It would certainly be reason-
able to believe this if my action were a response to your request to borrow
it. However, taken in and of itself the throwing of the keys is just that, a
transfer of keys. Yet the keys are related to the car in such a way that I may
b e said metonymically to be giving you the car. Nodding and shaking one's
head to indicate agreement and disagreement, respectively, are interesting.
They are not culturally universal expressions, although people in very many
cultures say "yes" by nodding. At the same time these expressive behaviors
may have an etymology. A nod signifies agreement inasmuch as it derives
from a curtailed bow, which represents a ritualized submission to the other.
Shaking one's head, it has been suggested, may originate in the baby's
refusal of food by turning its head away.10
However, there is a danger of confusing a convention that connects the
behavior p to its further meaning q with a rule that displays the regularity
of p's succession by q. Someone who sits in a restaurant and orders a meal
normally intends to eat what is brought to her table and subsequently to pay
for that meal. If there is thought to be a convention to the effect that
someone who orders from a waiter is consenting to eat and pay for the
ordered meal, it is because the placing of the order standardly portends a
certain sequence of events. But an ordered regularity is not a convention,
and the question of whether a convention does or does not exist is separable
from the question of whether the convention may be described as resum-
ing, or being based upon, an ordered regularity. This is especially important
in the case of what is alleged to be nonverbal sexual solicitation. What
flirting leads to is distinct from what it immediately signifies. A wink may be
the precursor of a relationship that is eventually sexually intimate, but a
wink is not a nodthat is, actual agreement in itself to the intimacy.
There is a further important point The regular succession of p by q may
be explained in terms such as that the whole point of doing p is that it can
be succeeded by q, or that doing p has little value unless one goes on to do
q. If I agree to your borrowing my golf clubs for a week I would be surprised
to learn that you had not used them but merely stored them in a corner of
your house. Of course, strictly speaking, I might have agreed only to your
"having" the clubs, but I would normally be understood to have thereby also

10. I. Eibl-Eibesfeldt, Expressive Movements, in NON-VERBAL COMMUNICATION* 303 ( R A I lindc

ed., 1972).

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280 DAVID ARCHARD

agreed to their use. Their possession would be succeeded normally by their

use because that, it could be said, is the point of having golf clubs. There
would, similarly, be little point or value in your having my car keys if you
didn't use them to drive my car.
Consider, by contrast, the increasing levels of sexual intimacy. A certain
degree of such intimacy may be regularly succeeded by full intercourse. It
would be tempting but mistaken to believe that this is because the only
point or value of such restricted intimacy is as a prelude to full sex. Many
practice and find pleasure in heavy petting without the intention of coition.
Intercourse without foreplay may be unpleasurable; sexual intimacy short
of intercourse need not be mere foreplay nor unsatisfying.
There is an influential model or understanding of sex that conflicts with
this last claim. This is that sexual activity has a single telos or goal, namely
standard genital intercourse and male ejaculation. Any form of intimacy will
tend to be viewed as a preparation for this goal. As such, a lesser intimacy
cannot be enjoyed for itself but only for what it leads up to. The familiar
colloquialism "going all the way" resonates with this ideathat there is one
way and it has a terminus. Allied to associated viewsnamely that sexual
arousal has an increasing intensity and increasing degree of involun-
tarinessthis "climactic" model of sex can prejudicially influence under-
standings of what exactly is consented to when something short of full sex
is agreed.11

III. SEXUAL CONVENTIONS

I have given some reasons to be cautious about assuming that the relation-
ship between a piece of behavior, and a subsequent action, is always to be
explained in terms of conventions. I now want to challenge directly the idea
that there are conventions whereby women express their consent to sex,
and that an individual's reliance on these can serve to acquit him of rape.
I propose to make some general comments and then turn my attention to
the particular argument of Husak and Thomas.
It would be implausible to maintain that there are no sexual conventions.
First, consider two special cases. Sadomasochistic sexual activity, while giv-
ing great pleasure to its participants, also runs the risk of exposing them to
serious harm. Practitioners of SM stress the importance of consensuality yet
acknowledge the difficulties, given the nature of the activity in which they
engage, of ascertaining whether consent is or is not being given to some
practice. They will thus engage in prior negotiation about the limits and
terms of any subsequent encounter. This may include agreement on con-

11. For critiques of this model in the context of legal thinking about rape, see Bernadette
McSherry, 'No! (means noV), 18 ALTERNATIVE L.J. 27-30 (1993), and Ngaire Naffine, Possession:
Erotic Love in the Law of Rape, 57 MOD. L. REV. 10-37 (1994).

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"A Nod's as Good as a Wink" 281

ventions or rules by which agreement to some activity may be inferred from

a behavior.12
Consider next a long, intimate, and loving relationship between two
people. They have developed over time a clear understanding of what each
sexually wants and is willing to engage in. Such an understanding relies on
conventions shared by them but, in many cases, by them alone. They use
and rely on these conventions in their sexual activity just as they use and
rely on conventions in other areas of their life together. Each partner's
agreement to what they do as a couple may be wordless and inferred
successfully from pieces of behavior outsiders could not interpret as they
do. Their relationship is the better for having these wordless yet conven-
tional understandings of what is agreeable to them both.
In the first case, strangers can explicitly negotiate and agree upon sexual
conventions; in the second, a loving couple gradually develop such conven-
tions. I take it that the question at the heart of the current discussion is
whether everyone, including those who are strangers to one another, can
reasonably rely on sexual conventions that have not been expressly agreed
between any of them. I further take it that such conventions, if they do have
presumptive weight in allowing consent to be inferred from behavior, have
such weight, and that reliance on them is reasonable only in a context
where no explicit dissent has been given. It is not as though a woman's
behavior falling under a convention can be cited as evidence that she has
consented against the fact of her saying "no."13 The question is rather
whether, in the absence of any other signs to the contrary, consent may be
inferred from a behavior by means of a sexual convention.
Let me now make three brief points. First, the behavior that falls under
any sexual convention must surely be more than mere friendliness, more
even than flirtation. At the outset of this article I cited Smith's agreeing to
go back to Jones's flat and asked if it constituted consent to sexual intimacy
with him. Susan Estrich quotes Ann Landers as saying in 1985 that "the
woman who 'repairs to some private place for a few drinks and a little
shared affection' has, by her acceptance of such a cozy invitation, given the
man reason to believe she is a candidate for whatever he might have in
mind."14 If Landers means to say that her agreeing to repair to the flat is in
itself consent to the sexual intimacy hoped for by the man, then that claim
will strike most as outrageous. If she means to say only that the woman's
behavior gives encouragement to the man's expectation that she will sub-
sequently consent to such intimacy, then that, as I will spell out later, is a
different matter.

12. See evidence given to the British Law Commission, Consent in the Criminal Lnxo, Consult-
ation Paper No. 139 (London: HMSO, 1995), 10.32. One respondent speaks of "ritualized stop
words."
13. "Her lips said 'no' but her eyes said 'yes'" is a familiar excuse offered by a man who
sexually persists in the face of his victim's protest.
14. Susan Estrich, REAL RAPE, 100 (1987), citing Boston Globe, July 29,1985, p.9.

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 DAVID ARCHARD

Second, even mere participation in some degree of explicit sexual inti-

macy cannot, of itself, be taken as consent to full sex, and it cannot surely be
taken as such if dissent to such full sex is expressed. There are behaviors that
often form part of full sexual intercourse, levels of sexual intimacy that are
frequently succeeded by higher levels of intimacy up to and including full
coitus. If f r instance, a woman agrees to lie naked in bed with a man and
permits a measure of intimate, mutual touching, should the woman's willing
behavior thus far be construed as consent to penetration and intercourse?
Clearly the presumption that it may be taken as such is more strongly
established the more familiar the couple are with one anotherthat is, the
more often this kind of sexual interaction has taken place between them.
But with strangers the presumption is weaker and is defeated by any expres-
sion of dissent on the part of the woman from subsequent moves by the man
to a greater degree of sexual intimacy. To repeat, the woman's previous
behavior does not of itself trump her explicit dissent to full sex.
A man may lay claim to feel frustrated in his expectations if a woman
permits a certain degree of sexual intimacy but dissents from full sex. Many
would sympathize with him and further believe that the woman's behavior
is ilLjudged, dangerously provocative even. However, the question is not
how foolish the woman is in leading the man to form the belief that she will
consent to sex. It is whether in behaving like this she is consenting to sex.
She may be consenting to that which runs the risk of rape; she is not thereby
consenting to rape itself. Rape is not excused by the fact that the man could
not help himself in persisting despite the woman's dissent; it is only excused
by his persisting in the reasonable belief that she was consenting. That
belief cannot reasonably be generally and simply inferred from behavior
that is sexual even if it is often a prelude to full sex.
However, it does seem plausible to assert that sexually explicit behavior
may be taken as consent to further intimacy if it succeeds a direct inquiry
as to whether such further intimacy is agreeable. If a woman responds to a
man's question "Do you want sex?" (or some similar unambiguous formu-
lation) with a wordless but sexually explicit action, then that behavior, in
such a context, may be presumed to constitute consent. It does so in the
same way as my silently tossing you my car keys may be presumed to
function as a "yes" to your request to borrow my car. The behavior is put
within a context where it is reasonable to infer consent from it. I take it,
however, that no appeal needs to be made here to specific sexual conven-
tions. Rather, it suffices to employ a general convention to the effect that
some nonlinguistic behavior counts as an affirmative answer to a request for
consent when it is that very behavior (or behavior related in a clear and
unequivocal manner to that further behavior) consent to which is being
requested.
_ -iird, it was stated above that the question at stake is whether, in the
2.' _ ~ of any other signs to the contrary, consent may be inferred from a

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 "A Nod's as Good as a Wink" 283

behavior by means of a sexual convention. The inclusion of the phrase "in

the absence of any other signs to the contrary" is contentious. There are
those who have argued that absence of dissent should not be taken as
equivalent to or as entailing consent. Central to a familiar feminist critique
of standards of sexual consent has been the claim that mere acquiescence
is to be distinguished from the giving of consent. In a context of significant
gender inequality, women do not give their genuine consent to sexual
relationships with men so much as acquiesce in their continuation.15 That
critique urges the impossibility of any real consent being given by women.
However, even among those who presume that women can give their con-
sent are some who argue that in every sexual interaction an assurance of
such consent can and should only be gained by direct inquiry of the woman.
They urge further that consent is given only by an affirmative verbal an-
swer.16
These arguments are important ones. But they are to be separated from
the claims under consideration here. My argument against the existence of
sexual conventionsthat is, conventions whereby women give their consent
to sexdoes not presume that women cannot ever give their real consent
to sex. Nor does it presume either that mere silent acquiescence to a man's
advances constitutes consent, or that, on the contrary, only an explicit
affirmative can constitute such consent. I do, however, believe that an
explicit nonlinguistic behavior and not merely a verbal utterance can count
as an affirmative response to a request for consent. The issue at stake is
whether there are some explicit behaviors on the part of a woman that do
constitute consent by falling under a convention and do so whatever the
context.
I turn then to my difficulties with the argument of Husak and Thomas
that there are such conventions. First, Husak and Thomas describe the
conventions in an ambivalent way. In particular, they shift from a weaker to
a much stronger construal of the conventions in question. There may
indeed be conventions"courtship rituals"whereby a woman expresses
her interest in another man, her willingness to be approached by him. This
is not the same as saying that the woman, if approached, would consent to
have sex with him. Nevertheless, there may be conventions governing a
woman's behavior that would give a man a reason to believe that a woman
behaving in a certain fashion would consent to sex with him. But the

15. This argument is given most notable expression by Catharine MacKinnon. See, for
instance, her Rape: On Coercion and Consent, in TOWARD A FEMINIST THEORY OF THE STATE 171-83
(1989). See also Carole Pateman, Women and Consent, 8 POLITICAL THEORY 149-168 (1980),
reprinted in her THE DISORDER OF WOMEN: DEMOCRACY, FEMINISM AND POLITICAL THEORY 71-89
(1989).
16. Among those who have defended an affirmative verbal consent standard (consent is
given if and only if an explicit "yes" or its verbal equivalent is uttered) are: Lois Pineau, Date
Rape: A Feminist Analysis, 8 LAW & PHIL. 217-43 (198); Lani Anne Remick, Read Her Lips: An
Argument for a Verbal Consent Standard in Rape, 141 U. PA L. REV. 1103-51 (1993); Stephen J.
Schulhofer, The Gender Question in Criminal Law, 7 SOCIAL PHIL. & PoL'Y 105-137 (1990).

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284 DAVID ARCHARD

conformity of her behavior to that convention need not in itself be the

consent.
Compare the following two argumentative forms:

(A) 1. There is a convention to the effect that anyone who does p is consenting
toq;
2. Smith does p;
Therefore, 3. Smith consents to q.

(B) 1. There is a convention to the effect that it is reasonable to believe that

anyone who does p consents to q;
2. Smith does p;
Therefore, 3. It is reasonable to believe that Smith consents to q.

There is a clear difference between the two arguments, which turns on how
the convention is to be understood, and which gives license to quite differ-
ent conclusions. Indeed, it is proper to think that only in argumentative
form (A) does a convention properly function. In (B) the "convention" is a
law or rule in the sense of an inductively grounded regularity. I may reason-
ably believe that if p then q because q and p are regularly conjoined, and,
in consequence, reasonably believe q because p is true. It might be reason-
able for a man, observing that a woman's behavior falls under such a rule
as (B) specifies, to believe that she consents to sex. However, he may not be
justified in believing that her behavior is consent, if there is no convention,
such as (A) specifies, to that effect.
Husak and Thomas shift from one claim to the other, and on one
occasion they do so on the very same page. They say it is "crucial to
understand the convention by which women express their agreements to
sexual relations," and they speak of convention "wcs," standing for
"women's consent to have sex." Several lines later they state that "conform-
ity with convention wcs is a reason to conclude that the man's belief [in the
woman's consent] is reasonable, whether or not his partner has in fact
consented." 17 Of course, if convention "wcs" is the convention by which
women express their agreement, then conformity with the convention is
consent. The man's belief in consent is true, and not just reasonable
"whether or not his partner has consented."
To repeat, the shift from one form of convention to another is to be
explained by thinking of a convention as both a rule, which governs the
meaning that can be imputed to a behavior, and as an inductively
grounded regularity, which permits someone to expect what is normally
associated with some behavior. The difference is between a convention
that gives a nod the meaning of "yes" and a "convention" that says a
wink is regularly associated with the giving of an affirmative answer. But

17. Husak & Thomas, supra note 2, at 109.

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 "A Nod's as Good as a Wink" 265

a wink is not a nod, and there need be no convention that allows a wink
to be read as a "yes."
It should be noted that the "convention" is weaker still if it links together
not behavior and present consent but behavior and the probability of future
consent. A woman's "wink" may not be regularly conjoined with her now
giving consent, but be frequently succeeded by her later consent. However,
a man cannot reasonably claim that a woman's behavior indicates current
consent when it only supports a prediction of possible subsequent consent.
In general, any doubts that there are conventions whereby a behavior is
itself consent (as opposed to rules supporting the assertion that there is or
will be consent) and evidence that a behavior need not mean consent will
also subvert one's confidence in reliance on these mere inductively
grounded regularities.
My second difficulty with the argument of Husak and Thomas is that they
fail to acknowledge the possibility that men and women attribute different
meanings to the same behavior. Because these writers attach enormous
importance to empirical evidence,^ it is surely valid to note the wealth of
material that documents cross-gender miscommunication, especially in the
area of sexual interaction. Among the most salient findings of this psycho-
logical research is that men consistently read behavior in more sexual terms
than do women. They interpret friendly behavior as conveying sexual inter-
est, and they are more inclined than are women to see certain dating
scenarios as indicating a willingness to have sex. Men thus view a token
piece of behavior by a woman as indicating more sexual interest and
willingness than do women.
It may be the case that women make use, consciously or unconsciously,
of conventions whereby their behavior can be understood in sexual terms.
Conventions provide a useful shorthand language whereby intentions and
desires can be communicated. It may also be the case, for the sorts of
reasons Husak and Thomas suggest, that women have a special reason to
rely on such conventions. Feminine modesty or chasteness, whether natural
or socialized, may make it difficult or impossible for women to be sexually
explicit or forward. It is also possible that there should be some conventions

18. At one point they speak of "the dangers of trying to resolve these matters without
consulting empirical data"; supra note 2, at 110.
19. A classic article is Antonia Abbey, Sex Differences in Attributions for Friendly Behavior: Do
males MisperceiveFemales'Friendliness? 42 J. PERSONALITY & Soc. Psraioi.. 830-38 (1982); see also
bpencer E. Cahill, Cross-Sex Pseudocommunication, 26 BERKELEYJ. SOC. 75-88 (1981); Charlene
L. Muehlenhard, Misinter/mled Dating Behaviors and the Risk of Date Rape, 6 J. Soc &
PSYTCHOL. 20-37 (1988); (); R. Lance
ce Shetland and jane M. Cmig, Can Men and Womm DiffaZtiate
b e t w e e n Friendly
between F r i e n d l yand
andSexually
Sll Ittd
Interested B Behavior?
hi? 5 151S Soc.P PSVCHOL.QQ.6 66-73
67 (1988)- Tracy D
Bostwick and Janice L. Delucia, Effects of Gender and Specific Dating Behaviors on Perceptions of Sex
Willingness and Date Rape, 11 J. Soc. & CLINICAL PSTCHOL. 14-25 (1992); Robin M Kowalski
Inferring Sexual Interest from Behavioral Cues: Effect of Gender and Sexually Relevant Attitudes, 29 SEX

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286 DAVID ARCHARD

about the meaning of behavior upon which both men and women are
agreed.
What obviously does not follow is that those alleged conventions upon
which men rely to infer a woman's consent are always ones that women
themselves also rely upon to give their consent. Moreover, a powerful
reason to doubt that this is the case is provided by the evidence of gender-
based differences in interpretation of the same behavior. What to a woman
is just a wink is likely to be seen as a nod by a man. It was argued in section
II on Conventions that a relevant consideration in deciding whether some-
one is entitled to rely on a convention is the extent to which the convention
has a universally univocal meaningthat is, how many people understand
the convention in the same unambiguous way. The evidence is that the
conventions to which Husak and Thomas appeal need not be understood
by women as they are understood by men. Moreover, given the same
evidence, it is much more likely that women are not consenting when men
think they are, than that they are consenting when men think they are not.
In short, male reliance on a convention of the sort Husak and Thomas favor
regularly exposes women, without any obvious compensating rewards, to
the risk of unconsented sex.
It may be said that women know the risks and should modify their
behavior accordinglythat is, conform their behavior to the convention
that men, if not they themselves, understand as prevailing. This does not
help, and it merely compounds the problem. In the first place, it is not as
though men decide to read women's behavior in one way, and women
another. There need not be, and probably is not, conscious awareness of
any conventions, nor of any difference between those employed by men
and those that women employ. Even those who might be expected to be
aware of the difference need not be. 20 Let us assume that both sexes do
become aware of the difference. Why should women change their behavior?
It is men who run the risk of inflicting injury through a mistaken under-
standing, and it is they who should adopt a policy of caution. Moreover, they
are able directly to confirm their understanding of women's wishes by
inquiry. In these circumstances, reliance solely on a convention that is
known not to be necessarily shared is culpably risky.

20. Consider the following opening paragraph from Antonia Abbey, Sex Differences in Attri-
butions for Friendly Behaviour: Do Males Misperceive Females1 Friendliness}, supra note 17, at 830:
T h e research described in this article grew out of the observation that females' friendly
behavior is frequently misperceived by males as flirtation. Males tend to impute sexual interest
to females when it is not intended. For example, one evening the author and a few of her
female friends shared a table at a crowded campus bar with two male strangers. During one of
the band's breaks, they struck up a friendly conversation with their male table companions. It
was soon apparent that their friendliness had been misperceived by these men as a sexual
invitation, and they finally had to excuse themselves from the table to avoid an awkward scene.
What had been intended as platonic friendliness had been perceived as sexual interest. After
discussions with several other women verified that this experience was not unique, the author
began to consider several related, researchable issues."

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 287
"A Nod's as Good as a Wink"
Even if there was a general change in women's behavior to conform with
men's expectations under the convention, there would still be merely a
shifting of the initial problem to another level. The initial problem is one
of coordination: A man should act in a certain way only if he can be as sure
as any reasonable person can be that the woman wishes to go along with his
actions. He relies on a convention to the effect that her behavior indirectly
signifies that wish. He learns that women do not behave in conformity with
that convention. Even if, subsequently, most women do come to conform
their behavior with the convention, he cannot be sure that this woman has
changed her patterns of behavior. There is, in short, still a problem ot
coordination. A man cannot be sure that every woman has acted according
to the higher-order convention, that where a lower-order convention is
disputed between the sexes, a woman will act to conform to the male
understanding of the lower-order convention.21
My third difficulty with the approach of Husak and Thomas is that me
more due acknowledgment is given to the particularity of each and every
sexual interaction the less reason there is to think that reliance upon
general conventions is warranted. When Smith allows Jones to undress her,
she is engaging in a particular behavior with a particular person in a
particular situation. A convention "wcs" of the kind whose existence Husak
and Thomas defend abstracts from all these particularities. If allowing
oneself to be undressed falls under a convention "wcs" then Smith is
consenting to sex with Jones, as would she or anyone who did the same
thing with any other person in any other set of circumstances be consenting
to sex with the othen Smith is to be understood as consenting whenever*
to whomsoever she behaves in this way. However, sexual behavior, even be-
tween a long-standing couple, is rarely of a uniform character. It is likely to
be modulated by immediate circumstances, present expectations events in
the recent past, mood, and disposition to the other. Therein lies the pleas-
ure of discovering the unexpected within the familiar.
Husak and Thomas do acknowledge that a man, trying to interpret a
woman's responses to his own initiative, may operate not only with the social
convention "wcs" but also with a "specific schema" that reflects how she has
responded to similar advances in the past." They argue that his knowledge
of her sexual history, "particularly with him," is relevant to his interpreto-
tion.22 Let us be clear how this is supposed to work. A man may come to
realize that the behavior of a woman with whom he has a sexual history
conforms to one or several conventions "wcs." What should matter to him
in his relationship with her is not that these conventions are general and
applicable to all, but that they govern her behavior toward him. She and he
have their own "specific schema" that just happens to be consonant with the

21. The classic study of conventions as a solution to coordination problems is David K.

Lewis, CONVENTION: A PHILOSOPHIC STUDY (1969).
22. Husak & Thomas, supra note 2, at 124.

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288 DAVID ARCHARD

conventions "wcs." He may, on the other hand, come to learn that her
behavior does not conform, entirely or in part, to the conventions "wcs."
Husak and Thomas cannot surely believe that the man should still give a
presumptive weight to these conventions, arguing that as a woman-in-gen-
eral she must mean this by her behavior even if as this particular woman she
does not give her behavior that meaning. Here the "specific schema" simply
supplants the conventions "wcs." In short, it is not that some "specific
schema" should operate in conjunction with conventions "wcs"; such a
schema should operate independently of and without the need for the
conventions.
My fourth concern about the analysis of Husak and Thomas is that
they appear simply to discount the duty upon men of seeking to assure
themselves that women are consenting when there is a risk of mistake
by exclusive reliance upon the convention. I argued earlier that it is wrong
to rely exclusively on a risky and uncertain convention when you don't
have to. Everything seems to suggest that this is how things are in the
present context. It is not reasonable to rely upon a convention "wcs" that
is not universally acknowledged, nor unambiguous. At the same time it
is possible for men directly to inquire of women whether or not they are
consenting. The harm to a woman of unconsented sex is much graver
than that of the loss to a man who refrains from proceeding to have sex
without consent.
There may, of course, be costs in requiring that men do directly inquire
of women whether or not they are consenting. It has been conceded that
reliance upon agreed conventions can be useful and particularly so for
women. The requirement that in every sexual encounter and at every level
of sexual intimacy men request directly and verbally of women whether they
give their consent to further intimacya requirement given formal expres-
sion in the much derided Sexual Offence Policy of Antioch College23is
open to the charge of cumbersome and clumsy insensitivity to the realities
of consensual sexual behavior. Can it really be envisaged that a couple with
a long and loving shared sexual history must expressly communicate and
seek approval for their actions on every occasion? What is plausible is that
the presumption that such express approval needs to be sought and gained
diminishes in weight the more familiar a couple are with one another, the
more that any shared sexual history has successfully displayed reliance on
mutually agreed conventions, and so on. The Antioch College policy has
the same kind of failing as the approach of Husak and Thomas: insistence
upon a general rule of sexual conduct at the expense of an insensivity to
the particularities of each and every interaction.

23. An extract from the 1993 policy document reads, "If the level of sexual intimacy
increases during an interaction (i.e., if two people move from kissing while fully clothed
which is one levelto undressing for direct physical contact, which is another level), the
people involved need to express their clear verbal consent before moving to that new level."

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41
A Nod's as Good as a Wink" 289

The claim made here may be described as standing between two ex-
tremes. On the one hand it is dangerous to allow men to rely in all their
sexual encounters with women upon allegedly general conventions "wcs";
on the other hand it is unrealistically inflexible to insist that in all dieir
sexual encounters with women men should be required to seek permission
for every kind and level of sexual intimacy. There are serious costs and risks
of significant harm from subscribing to either extreme. However, nothing
that has been argued here is incompatible with the use of nonlinguistic
behavior to communicate desires and intentions, or the development of
"specific schemas" of shared sexual understanding between particular per-
sons.
Husak and Thomas concede that there may be an emerging convention
that does impose on men an affirmative duty "to be more certain that the
women [sic] is truly consenting" but maintain only "careful empirical re-
search, not wishful thinking" can confirm the hope that this is happening.24
However, the duty in question is deducible from a general, natural duty to
avoid causing harm to others, where this can be done at no unreasonable
cost to oneself. The duty is not a social convention in the way that the
convention "wcs" is, and the duty's prescriptive force is not dependent upon
the existence of some social rule that acknowledges it. It may well be that
very many men are presently failing to fulfil the duty. That is to be con-
demned, and the demand that men change their ways does not need to wait
on empirical evidence that, as a matter of fact, they are starting to recognize
that they should.

IV. CONCLUSION

There are a variety of ways in which people may, by their behavior, incur an
obligation. In some kinds of circumstance a behavior may be taken as
constituting indirect consent, and there may exist conventions that allow a
behavior to be interpreted in this way. However, reliance on such conven-
tions should not occur when there are evident dangers in doing so, and the
existence of a univocal convention is not established. This is true in the case
of sexual encounters, where the injury of unconsented sex is great, and the
alleged conventions with respect to sexual consent are uncertain.
Of course, it is true that sex may be both unwanted and yet consensual,
and that it would be wrong to characterize as rape sex that was only
unwanted.25 The distinction made earlier between assent and consent, what
is agreed with and what is agreed to, allows us to acknowledge this fact. The
issue, however, is whether consent may be inferred simply from the fact that
a behavior falls under an alleged convention. I have given reasons to believe

24. Husak & Thomas, supra note 2, at 124-25.

25. Mat 118-20.

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290 DAVID ARCHARD

that it may not, and reasons not to believe that it may. The giving of consent
is an intentional, deliberate act, and because it does change the moral
situation, it is important to be assured that consent has been given. The
assurance can be gained from direct inquiry of the woman. Whether that
inquiry is appropriate in every sexual interaction, and whether it should be
satisfied in every instance only by the giving of an affirmative, verbal answer,
is a separate matter. The argument here has been that the assurance cannot
warrantably be gained from exclusive reliance upon conventions.
There are, it seems, two relevant proverbs. "A nod is as good as a wink"
means that, on occasion, one's meaning can best be communicated to
another by means of a physical expression. The longer proverb, which dates
from the eighteenth century, "A nod is as good as a wink to a blind horse,"
means that there is no point giving a hint to someone who refuses to
acknowledge it.26 In the case of sexual consent, a wink is not as good as a
nod. A woman's agreement to have sex need not be best communicated by
means of a physical behavior. Men are certainly not blind horses, and a
number of them are on occasion all too eager to read actual consent into a
hint of possible willingness. Yet men are wrong to act as though women
believe winks will do as well as nods. Nods and winks are different behaviors
and do not have the same meaning. The man who fails to see the difference,
and acts accordingly, is not merely blind but culpably negligent.27

26. R. Ridout and C. Witting, ENGLISH PROVERBS EXPLAINED 129 (1967).

27. For helpful critical comments of an earlier draft of this article I am indebted to the
anonymous referee of Legal Theory.

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