Consent Is Not the State's Cup of Tea
By Will Tippens - April 15, 2015

What does it mean to "consent" to something? Thanks to the increasing, if often misplaced concern over sexual assault and rape, this important question is being posed now more than ever.

One recent article went viral by aptly comparing sexual consent to offering someone a "cup of tea." According to this analogy, consent is as simple as offering someone a cup of tea; if they accept, they will drink the tea. If they decline or lose capacity to consent (lose consciousness), the tea party host cannot pour it down their throat. A simple yet effective analogy.

However, the topic of consent is an extremely important legal concept, as it is not only the key element in differenting between sex and rape, but the difference between all aggression and voluntary agreements. Without the concept of 'consent,' we cannot determine if someone is going on a date or being kidnapped, loaning $20 to a friend or having it stolen, or fighting in a boxing match or being assaulted by Mike Tyson.

But the elephant in the room that no one seems to mention is that this simple yet effective definition of consent raises a far more deeply reaching question: Is our relationship with government consensual?

If you posed this question to a room full of average political science majors the most common answer would inevitably be "yes." When pressed for justification, they would glibly reply, "Well, the social contract, of course!" This commonly held belief claims that in order for everyone's rights to be protected, everyone must … surrender a sizable chunk of their rights. Naturally, its intellectual originator, Thomas Hobbes, declared that society needs a "Leviathan" state for this purpose.

As if this is not dubious enough on its face, upon closer examination, the "social contract" is absolutely, irredeemably unfounded. It can scarcely call itself a contract in the first place, as it lacks the legal requisites of offer, acceptance and consideration. No person alive has ever been offered or accepted a contract from the government to be ruled. Therefore, the only way to justify such a thing as a "social contract" is to support perpetual contracts that are enforceable onto third parties who did not explicitly agree to them. Under this Bizarro theory of contract, people could legally bind you to agreements to which you have not consented. Also, it means that you would not be able to withdraw this consent. In the context of the tea party analogy, applying the "social contract" would effectively mean that you could be forced to drink tea whenever your host arbitrarily wanted you to, forever. And if you resist, your host could pour tea down your throat legally.

Still, many "social contract" proponents insist that it transcends fundamental contractual limitations because it is for the mystical "greater good." Simply by living in a geographical area, they argue, everyone implicitly agrees to give up whatever rights their rulers arbitrarily decide is appropriate. But by this reasoning, all one has to do to legally override any lack of consent is to declare that the action in question is done for the "greater good," and all rights violations are excused. Countless state actions are explicitly justified using this criteria – ranging from forced sterilization to preemptively jailing an entire racial group. It is readily apparent that the "social contract" is a dangerous superstition for anyone who truly values the protection of consent for every individual.

Regardless of its justification, if someone is not given an option to meaningfully say 'no' they cannot be said to have truly consented to a choice in question. In practice, if one does attempt to peacefully "opt out" from the state, they are labeled a terrorist, jailed and if they resist, battered or killed. This underlying threat of violence in the relationship between the state and its citizens is no different than the issue of sexual assault the author of the tea analogy seeks to draw attention to.

More people than ever are having the conversation about what it means to consent and how best to protect this important legal doctrine. The State of California decided that it was important enough to legislate an (extralegal) affirmative consent law for sex on college campuses. But why don't the activists who claim to care so deeply about protecting consent apply their "cup of tea" analogy to every issue? All of human society is predicated upon peaceful, consensual interactions between individuals. So shouldn't a civilized society hold everyone to the same standard of conduct, regardless of badge, uniform, or title?

As the "cup of tea" article concludes, "Consent IS everything," and it's time to realize that we do not have a consensual relationship with the state.

Will Tippens is a third-year law student at the University of Memphis Cecil C. Humphreys School of Law and plans to take the Tennessee Bar in July 2015 and enter general private practice. A passionate student of libertarianism and Austrian economics, Will has worked as a research associate with the Nashville based Beacon Center of Tennessee, volunteered for the Ron Paul 2012 campaign and was the president of the Memphis chapter of Young Americans for Liberty from 2012-2013. Follow him on Twitter @willtippens