Edited by Frank Fagan and Saul Levmore
Consent distinguishes certain criminal acts from non-criminal ones. Sex without consent is sexual assault. Sex with valid consent is just, well, sex. In this chapter, we focus on one particular aspect of consent to sex – the timing of consent. That is, not whether consent is given, how consent is given, or the scope of consent that is given, but rather when consent is given. More precisely, we explore the relation between the timing of consent and these other aspects of the consent calculus, in light of the changing definitions of sexual assault in criminal law and university sexual misconduct codes. In this setting, retrospective consent offers a partial corrective for definitions of sexual misconduct that render most sex technically a violation. Keywords: sexual assault, consent, retrospective, retroactivity
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