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The London School of Economics and Political Science Beyond Illusion: A The London School of Economics and Political Science Beyond Illusion: A juridical genealogy of consent in criminal and medical law Karla Maureen O’Regan A thesis submitted to the Department of Law of the London School of Economics for the degree of Doctor of Philosophy, London, January 2nd, 2014. i DECLARATION I certify that the thesis I have presented for examination for the PhD degree of the London School of Economics and Political Science is solely my own work other than where I have clearly indicated that it is the work of others. The copyright of this thesis rests with the author. Quotation from it is permitted, provided that full acknowledgement is made. This thesis may not be reproduced without my prior written consent. I warrant that this authorisation does not, to the best of my belief, infringe the rights of any third party. I declare that my thesis consists of 95,785 words. ii ABSTRACT Consent is a concept used frequently and with great significance in a wide array of legal fields. It serves to regulate relationships, legitimize authority, delimit normality, and entrench idealized ways of being in the world. Yet despite the consequence of these functions, there is very little precision within legal scholarship about just what consent is. Few investigations of its definitional content depart from presumptive statements about personal autonomy. These associations are often described as the ‘common sense’ of consent and serve to secure a foundationalist discourse about what consent is, rendering alternative conceptions of its meaning or functions unintelligible. This is perhaps best evidenced in more critical approaches to consent, where despite widespread acknowledgement of the concept as a legal and political fiction, its status as a signifier of autonomy is maintained. This creates an imperative to move beyond the notion of consent as merely an illusion, to an understanding of it as something more operative. Not only does the story of autonomy that is told about consent obscure the social realities of inequality, difference, and subordination that might threaten a notion of a homogenous citizenry (and thus, governmental action made in its name), but it also conceals the historically specific conditions of existence which have brought consent’s ‘common sense’ story of autonomy into being. This thesis explores how this dominant narrative of consent, while producing certain ‘ideal’ subjectivities, also necessarily produces subjectivities which don’t fall within the ambit of consent. Moreover, this project asks what is achieved when the meaning of consent is positioned as a matter of ‘common sense’? What does its apparent transparency keep obscure? In contrast to conventional approaches to consent, this project positions consent as an historical artefact rather than a concept with doctrinal, cognitive, or communicative certainty and seeks to investigate its operations across legal fields rather than strictly within them. This includes an examination of consent to sex, the doctrine of informed consent in medical jurisprudence, and the defence of consent to assault in professional sporting contexts. Further, the project engages in a ‘juridical genealogy’ of consent, studying its use in three vastly different historical periods in search of how it might perform different socio-political functions than understandings of its role within contemporary medical and criminal law suggest it should. How these counter-narratives of consent serve to challenge the dominant autonomy story are investigated for what they reveal about the frames of cultural and legal intelligibility at work in consent law today. iii This one’s for JR. JOE: I was looking for you. Where were you? MAG: Waiting for you. - Brian Friel, Lovers (1967) iv ACKNOWLEDGEMENTS I have had a practice over the course of writing this thesis of looking up the completed doctoral dissertations of people that I know. Somehow it helped to convince me that the task I had set out in front of me was possible to complete. Aside from feeling a bit comforted, I was struck by how all of them were built on the backs and hearts and minds of so many others. This could not be more accurate in my case, and while it is a rather feeble tribute to those who have helped me, I hope these small words of thanks will help to dispel the ‘illusion’ that this accomplishment has been a solitary endeavour. First and foremost, I thank my supervisor, Susan Marks. Her formidable intellect, seemingly endless patience, inquisitive mind, and self-professed ‘reckless confidence’ in the project have provided me with both the courage to pursue unfamiliar territory and a safe haven when these pursuits have left me wandering in the dark. Among the many gifts my experience at the LSE have provided me, the opportunity to learn from her has been my most treasured. A great deal of people at the LSE have provided immeasurable assistance and support. Nicola Lacey and Jill Peay provided me with early guidance and have been remarkably generous in their continued support of the project. Alain Pottage and Linda Mulcahy have served as model Program Directors, and, along with Rachel Yarham, have displayed an admirable level of patience in answering far too many queries from a confused Canadian. I am also grateful to Emily Jackson, Stephen Humphreys, Stuart Andrews, and Elena Loizidou who gave me much-needed encouragement of the project in its earliest stages, and to Maria Bell and her library staff for their continuously courteous assistance. I am also indebted to the Law Department for a Research Studentship scholarship which made my studies at the LSE possible. Sumi Madhok and the LSE’s Gender Institute provided me with a true sense of community during my time in London and helped me find the courage to pursue less travelled routes in my own work. In the same respect, I am thankful for so many of my Law Department colleagues who helped me feel ‘at home’ while living so many thousands of miles from anything familiar. Coming to know and befriend Ewan McGaughey, Rob Knox, Helen Coverdale, Uglješa Grušić, Charles Majinge, Nicolas Perrone, Johanne Jacques, Kristen Veblen, and Stephen Fox has been the highlight of my doctoral studies. I have been graced with an equally staggering amount of support on the other side of the Atlantic Ocean. St. Thomas University granted me a leave of absence to pursue my doctoral work and my colleagues in Criminology have been remarkably gracious with their time and encouragement of the project in its final stages, despite the many interruptions it brought to my daily duties. Claire Goggin, Jean Sauvageau, and Susan Reid deserve special mention in this regard. In the same vein, my students have shown tremendous patience as I struggled to complete my thesis while teaching, all the while serving as a reminder that the work should ‘speak to life’ as much as it spoke in law. I was assisted during my research process with the generosity of a number of scholars who shared their work with unfailing collegiality, including Clare Morgana Gillis, Hilary Young, and Michael Thomson. I was also fortunate enough to be graced with a number of ‘trusted assessors,’ who laboured through unreadable drafts to provide me v with tremendously helpful feedback. Thank you to Richard Devlin, Russ Hunt, Katie MacDonald, Thom Parkhill, Jeff Richardson, and Angélique Wojcik Simpson. In addition to reading and conversing about my work, I am indebted to Tricia Morris for providing my ideas with a ‘home’ from which I could emerge with a strength and clarity I would not have found on my own. Many other friends and colleagues have helped me along, some by simply asking for progress reports, others by offering their homes, senses of humour, or hockey expertise. For this and much more, I am grateful for Kathy and Gus Chan, Karolyn Martin, Brad Lemon, Mike MacDougall, Matt Richardson, Kate McQuaid, Andrew Moore, Mike Thompson, Ian Brodie, Amanda Jardine, Rachel and Clarence Bennett, Martha Kolls, Mark Schram, Patrick Malcolmson, Siobhan Hanratty, and John McKendy. To suggest my family has supported me is to understate the matter. Often, this support meant there was an empty seat on the bleachers at a rugby game or in the audience of a Christmas concert. They have asked how it was going, listened to me whine, and quelled their own demands for my time and for this and a great deal else, I thank and love you: Mom, Dad, Stephen, Joan, Emily, Jamie, Bailey, Rylan, Hope, Bill, Mark and Devon. Ludovico Einaudi, Laurie Brown, Rich Terfry, and You are my Symphonic are owed thanks for always finding a way to bring me up or take me down, whatever the occasion might have called for. Their work has never failed to help me find a place where I could think. My last words of thanks are owed to ‘the pride’ – this small collection of humans and felines that bring such joy and comfort to my days. While Bo and Mordecai have done their fair share of inserting typos into the text and providing my daily doctoral wardrobe with that special furry charm, the greatest of gratitude is owed to my partner, Jeff. To enumerate the many ways in which he has supported me over the course of this project seems too daunting a task. It is not simply the many pep talks or loads of laundry or cooked meals or lost time, but the tireless, unfailing faith he has shown in me. It is perhaps enough to quote him directly in his response to learning that I had dedicated the thesis to him: “Why? All I did was listen.” Would that all PhD hopefuls be as fortunate! Greet me with banners and balloons And my hard drive smashed to pieces Nothing left for me to save When I write my [doctoral] thesis.
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