Consent of the Unconscious and the Incompetent

Abstract

Abstract Consent of unconscious people is most often discussed in connection with performing medical procedures on comatose patients. But those issues arise particularly pointedly in sexual encounters where one person consents to another’s performing sexual acts on them when they are unconscious. Consent was given before they became unconscious; but continuing consent is required, and unconscious (or incompetent) people are constitutionally incapable of either reaffirming or revoking consent. That may not be a problem for surgeons operating on pre-consenting patients while comatose, because the surgeon stands in a fiduciary relation to the patient in a way the sexual partner does not. Connected to that is the fact that saving lives where you can is the ‘moral default rule’, whereas securing sexual gratification with or without consent is most definitely not.