Consent

Domestic and Comparative Perspectives

Alan Reed, Michael Bohlander, Nicola Wake, Emma Smith

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317161912
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This volume presents a leading contribution to the substantive arena relating to consent in the criminal law. In broad terms, the ambit of legally valid consent in extant law is contestable and opaque, and reveals significant problems in adoption of consistent approaches to doctrinal and theoretical underpinnings of consent. This book seeks to provide a logical template to focus the debate. The overall concept addresses three specific elements within this arena, embracing an overarching synergy between them. This edifice engages in an examination of UK provisions, with specialist contributions on Irish and Scottish law, and in contrasting these provisions against alternative domestic jurisdictions as well as comparative contributions addressing a particularised research grid for consent. The comparative chapters provide a wider background of how other legal systems' treat a variety of specialised issues relating to consent in the context of the criminal law. The debate in relation to consent principles continues for academics, practitioners and within the criminal justice system. Having expert descriptions of the wider issues surrounding the particular discussion and of other legal systems' approaches serves to stimulate and inform that debate. This collection will be a major source of reference for future discussion.

Part I

1
Distinguishing sex from sexual violation

Consent, negotiation and freedom to negotiate

Tanya Palmer

Introduction

Consent has become the dominant paradigm in legal and lay discourses for distinguishing sex from sexual violation. However, consent-based models of sexual offending are flawed in a number of respects. The first two parts of this chapter explore respectively the reasons why consent has been embraced as a framework for evaluating sexual encounters and the problems with this framework, concluding that consent is not an appropriate standard by which to distinguish sex from sexual violation. The third part of the chapter introduces negotiation as a potential alternative framework, focusing on two specific law reform proposals put forward by Lois Pineau and Michelle Anderson. This work offers valuable insights for rethinking the sexual offences so as to better reflect the reality of sexual encounters, but also reproduces some of the problematic aspects of consent frameworks. The final part of the chapter draws on these models alongside original empirical data to develop a concept of ‘freedom to negotiate’. This is proposed as a viable basis around which to reframe sexual offences law.

Consent as the Dominant Paradigm in Sexual Offences Law

Consent is the primary dividing line between sex and sexual violation in English and Welsh law. It was recognised as a crucial element of the crime of rape as far back as the mid-nineteenth century,¹ and has become increasingly central to sex offences law, having been included within the first statutory definition of rape in 1976² and enshrined as the pivotal element of rape and sexual assault in the Sexual Offences Act 2003.³ More recently, the European Court of Human Rights has affirmed that all non-consensual sex, not just that involving physical violence, is rape.⁴ Numerous legal scholars have endorsed the definition of rape and sexual assault as non-consensual sexual activity and have explored in detail the specific form consent has taken and should take in sexual offences law.⁵

The legal reforms which have placed consent at the centre of sexual offences law have been widely embraced in large part because they emerged as a progressive shift from previous constructions of rape and sexual assault. Earlier definitions of rape emphasised physical force on the part of the perpetrator and resistance on the part of the victim, neither of which are required under a consent-based definition.⁶ The latter therefore protects a greater number of people from having sexual activity imposed upon them against their will and has thus been broadly – though not universally – welcomed by feminist and women’s movements.⁷ At the same time, situating consent as the marker of legitimate sexual activity provides a basis for resisting the criminalisation of sexual acts that fall foul of conservative Christian sexual morality, eg anal sex and/or sexual activity between two or more men. Hence consent has also been championed by the gay rights movement and other sexual minorities.

Despite academic and popular support for the consent paradigm, sexual offending remains a highly problematic area of criminal law and criminal justice. Rates of victimisation are consistently high, whilst reporting and conviction rates are low.⁸ In addition, reforms to the substantive law have not prevented factors other than consent – such as the infliction of physical injuries, the status of the relationship between the complainant and the accused, and the behaviour of the complainant after an alleged rape – from influencing the judgements of actors at every stage of the criminal process.⁹ These difficulties are often interpreted as resulting from the relevant actors failing to properly apply consent to the facts; the status of consent itself as the dividing line between sex and sexual violation frequently goes unchallenged.¹⁰ This perception that consent is not being properly understood underpinned the introduction of a statutory definition of consent in the Sexual Offences Act 2003,¹¹ as well as calls for consent to be included in sex education programmes at both school and university level.¹² It is, however, far from clear that all those advocating a consent-based definition of sex and sexual violation are using the term ‘consent’ in the same way.

Consent is an ambiguous concept. There is a lack of consensus as to whether consent consists of a mental state or some external performance;¹³ and even within these broad categories consent could consist of a range of mental states including actual desire, ambivalence, acquiescence and submission, or be constituted by a variety of actions including physical initiation, verbal agreement, or by a lack of action, ie a failure to say ‘no’ or resist. In addition, the extent to which different forms of coercion, deception and lack of mental competence can invalidate consent are hotly contested.¹⁴ I do not, however, propose to develop a clearer definition of consent. By contrast, I submit that consent is not an appropriate standard by which to distinguish sex from sexual violation.

Consent is Inadequate to Distinguish Sex from Sexual Violation

Consent is not an appropriate or effective way to distinguish legitimate sexual activity from sexual violation, for four key reasons. First, consent is enmeshed with a particularly individualistic notion of the Kantian liberal subject and as such is inapt to respond to the bodily, affective and relational dimensions of sexual encounters. Second, consent models support a construction of sexual encounters as inherently asymmetric and unequal. Third, the variable and amorphous nature of sexual activity is poorly-suited to a consent framework. Fourth, consent obscures much of the relevant context within which agreements to engage in sexual activity are made.

Consent represents a liberal understanding of subjecthood

The consenting subject is arguably the epitome of the rational liberal subject.¹⁵ Consent is effectively the granting of certain rights over oneself to another; it plays a central role in liberal discourses of the self as a mechanism by which autonomy is exercised. In the specific context of sexual offences, it functions as the gatekeeper of bodily autonomy, a power to control or limit access to one’s body. This framework invokes a Cartesian dualism in which the mind is viewed as the locus of the self, while the body is merely property owned by the self or the vessel in which the self is housed.¹⁶ Autonomy is then constructed as a cognitive process of reflection and rational choice. As such it obscures the central role that sensation, emotion, bodily realities and relationships with others play in guiding human decision-making, particularly in the area of sexuality.¹⁷ This has several negative results.

First, the abstract disembodied form of autonomy with which consent is associated leads to a misunderstanding of the wrong of sexual violation. When framed as non-consensual sex, the wrong of rape tends to be understood as a violation of the will, in contradistinction to the body. The removal of choice is certainly one of the wrongs of rape, but it does not fully capture the wrong of this and related offences. Rape is an experience in which bodily contact and physical sensation in combination with the cultural and personal meanings of that contact creates a profound and unique sense of violation. Sexual offence laws that promote a disembodied conception of autonomy are therefore seriously misguided in that by character-ising rape and sexual assault as wrongs against the mind, they obscure both the wrong against the body and the extent to which mind and body converge.¹⁸ This misunderstanding of the wrong of rape can also lead to an underestimation of the harms of rape, particularly in cases where physical violence and injury are relatively minimal.¹⁹

Second, as a threshold requirement for intimate physical contact, consent emphasises the policing of bodily boundaries. As such, consent models are associated with a competitive conception of autonomy as isolation or exclusion, through which individuals are encouraged to jealously guard their own interests against those of others rather than taking an interest in each other’s desires.²⁰ Within this framework potential sexual partners are logically understood as threats (who may violate one’s bodily boundaries if one’s non-consent is not enforced), or obstacles (whose consent must be obtained in order to proceed with one’s own desires) rather than collaborators in the creation of a mutually satisfying experience.

Third, the twin emphasis in the liberal autonomy-consent framework on rationality and boundedness (both psychic and physical) sets a threshold for subjecthood that facilitates the exclusion of some categories of people from its remit. Those who supposedly lack stable physical boundaries – eg gay men, all women, and persons with disabilities²¹ – cannot have their boundaries protected, while those deemed to lack a rational will – eg children and individuals with learning difficulties – cannot have their will respected. The sex life of these individuals cannot be easily accommodated within a consent framework and can thus be subject to a separate ethical and legal regime with a different set of rules. An illustration of this can be seen in the proliferation of specific offences against mentally disordered victims under the Sexual Offences Act 2003.²² The ostensible neutrality of consent, and liberal subjectivity in general, thus masks its uneven operation in practice.

Consent implies an asymmetric interaction

Consent is inherently asymmetric.²³ Framing an interaction as consensual suggests that one party makes a suggestion or request, to which another party can either consent or object.²⁴ Consent is therefore a minimal, reactive form of participation. In the specific context of sexual activity, a consent framework implies that sex always involves one (active) person doing something to another (passive) person.²⁵ Thus two parties to an encounter are not equally situated. A party who does not want to engage in sex is always at a disadvantage because the consequences of not persuading the other to respect one’s interests are far more serious.²⁶ Moreover, the differentiated positions of ‘initiator’ and ‘responder’ that a consent framework implies are not equally available to all. The distribution of these roles is shaped by strong cultural associations between masculinity, penetration, and sexual assertiveness, even aggression, and between femininity, passivity and openness or violability.²⁷

The uneven burden on the parties is compounded in the context of a criminal investigation and trial. Assuming it is proven that relevant sexual activity between the parties took place, a conviction for rape or sexual assault hinges on two key questions: did the complaina...

Table of contents

• Cover
• Title
• Copyright
• Content
• Notes on contributors
• Preface
• Introduction
• Part I
• Part II
• Index