Professor Sommers discusses her article "Commonsense Consent," which explores what people think consent is. Her empirical studies explore people’s intuitions about when consent has been granted, finding that most laypeople think consent is compatible with fraud. This belief is found across over two dozen scenarios in which consent is legally salient, including sex, surgery, participation in medical research, warrantless searches by police, and contracts. Armed with this empirical finding, the article revisits a longstanding legal puzzle about why the law refuses to treat fraudulently procured consent to sexual intercourse as rape. It exposes how prevailing explanations for this puzzle have focused too narrowly on sex, rather than the commonsense understanding of consent. This allows us to see that the problem is much deeper and more pervasive than previous commentators have realized. The findings expose a large—and largely unrecognized—disconnect between commonsense intuition and the dominant philosophical conception of consent.
