Barbelith Underground > Head Shop > SBR: Let's Theorize Consent

id and Leigh,

You both make really good points there. Thank you both for them. I think we are getting closer to an understanding of each other here.

Leigh,

I stand corrected. The last example that Haus gives is clearly an example of rape. I didn't read it as well as I could/should have, please excuse me on this one! The only thing I'd disagree with you is that by pushing (or pulling) someone out of the plane you have clearly used physical force, so this is a fairly clear cut analogy of rape. Point taken and well made. With begrudging acknowledgement to Haus as well. But don't tell him I said that....

Firstly lets separate harassment from coercion.

Coercion (1) - The act of compelling by force of authority. (2) - Using force to cause something to occur.

Harassment (1) - To irritate or torment persistently. (2) To wear out; exhaust. (3) To impede and exhaust (an enemy) by repeated attacks or raids.

So we can see that coercion indicates the threat of force.

Harassment is a separate issue to rape and pursuable in it's own right. Sexual harassment is basically any harassment with the objective of obtaining sex that is otherwise unwanted. You could basically consider rape to be where physical force, or the threat of physical force, is used to obtain sex, and harassment where other types of non-physical threat are used - losing your job, taking the kids away, telling people secrets etc, etc. The difference is that if someone acquiesces to harassment, "OK, I'll have sex with you, don't sack me" then they're considered to have consented. If they DON'T acquiesce and the person has sex with them anyway, that's rape. Now, it could be argued that an employer is engaging in the "The act of compelling by force of authority" and is thereby engaging in coercion, but legally the distinction lies in physical force, threatened or actual.

Sexual harassment laws are basically to give someone some protection from harassment becoming rape. Typically, just the report of sexual harassment is enough to obtain an Apprehended Violence Order (AVO) against someone. That is, there doesn't need to be an apprehended case of violence, there only needs to be an apprehension of violence to obtain an order. The beauty of this system is that it is an intervention that doesn't affect one's criminal record and acts in a manner similar to a "restraining order". Should the conditions of the order be broken then a crime is considered to have been committed and there are a range of punitive actions available, right up to custodial sentences. Suffice to say, you'd be a very silly person to then go and have sex with someone during the period that an AVO is in effect (generally they're issued for a set period and can be extended by application), because all they would have to do is report it and you would be in breach of your AVO. You would also have a very hard time arguing in a court of law that you didn't rape someone that had an active AVO out on you if that was their testimony. The courts love "Rape under AVO" cases, as do prosecutors, because they're considered to be pretty much open and shut cases that bypass much of the heartache intrinsic to a rape trial.

I hope this makes both makes sense and answers your questions.

id,
The law makes no distinction between or allowance for the initiating party. So by not allowing lawful consent to be gained from someone who is intoxicated, you effectively outlaw consent while intoxicated. This is important because the rationale for writing it this way was to put the onus onto the second party to ensure that the first party isn't so pissed up that they can't actually give consent. Fair enough. Secondly, it then put the onus on the first party to decide whether they gave lawful consent, and if not, whether a crime was committed against them. Again, fair enough.

Which brings us to acquiescence vs consent.

Personally I would consider "explicit consent" to consist of a "Yes" or "do it" or "OK" or some other positive reply in response to a specific question about a specific action. This consent cannot be assumed to be carried over to other actions. Furthermore, that consent, once given should carry for the duration of the encounter unless that consent is explicitly withdrawn. This also removes the potential for a kind of "sexual force majeure" as a mode of defence.

I would therefore consider acquiescence to be consent gained in the face of pressure, whether that pressure is harassment or coercion (and thereby, force). This is really important! Because acquiescence in the face of coercion is rape. Acquiescence in the face of harassment is consent. Bare in mind that acquiescence in the face of harassment must include a positive statement such as "OK" or "yes" or "alright" or similar, otherwise it is rape because there is no explicit consent. I know this might be unpopular, but what it does is very clearly define the conditions that go together to indicate consent versus acquiescence - and therefore rape versus consent.

Which brings us to the extreme trickiness of adding alcohol and/or drugs into the situation.

The full law stated that:

consent cannot be said to have been lawfully obtained if at the time of that consent the victim was intoxicated by drugs or alcohol, regardless of whether they have been persuaded to provide consent

So we have three points of contention - consent, intoxication and persuasion - rather than the current, single point of contention - consent. So, in actual fact, in the case of intoxication, the case is no longer whether the second party raped the first party, but whether the first party was intoxicated in the first place. So, by seeking to make rape cases less traumatic for the victim, we actually make it more traumatic. And this is before we get to defining intoxication and how you measure it. As it currently stands there isn't any consideration of intoxication, only of coercion. The problem with that is that currently the law allows for the "I was pissed and I thought she gave consent" defence. The problem with introducing such a law so written is that you remove this defence only to introduce the "She wasn't pissed, your honour!" defence. This also has the effect of removing the burden of proof from the defendant (to prove they were intoxicated) to the plaintiff (to prove they weren't intoxicated). So if we're designing the law to ease the pain on the defendant, clearly this doesn't work!

Haus,

I don't know whether your question "What sort of situation, exactly, are you worried about? was directed at me, but I'll answer it anyway!

What I'm worried about is:

1) Making rape harder to prove by moving the burden of proof from the defendant to the plaintiff.
2) The potential for vexatious claim (however unlikely).
3) "Technically" criminalising many, if not most, sexually active men (and many females).
4) The introduction of more than one loophole in the law in attempting the closure of one loophole in the law.

So going back to my original post about being drunk and the provision of consent. Allow me to illustrate it another way. If I get really drunk and walk out on the road without looking, is it the fault of the driver that hits me (provided there are no other extenuating circumstances)?

Similarly, if I'm drunk and say "Yes" to sex, in the absence of coercion, isn't that consent my responsibility? If I get so drunk that I say yes, without the influence of coercion, to otherwise unwanted sexual advances, isn't it my responsibility to ensure I don't get so drunk?

So, my argument in my original post was poorly written in that, by personalising it, I could only give one perspective on the law. I admit this was an error. Surely the exploration and discussion of ideas to make ones perspective both clearer and more succinct is part of the aim of Barb? I certainly don't think that it deserves some of the more lurid accusations flying around in Barbannoy. But I should probably expect no less from Barbannoy.

How about I propose a solution? The simple answer (in my mind) would be to outlaw a defendant's defence that argues that, due to their inebriation, "They were to drunk to be sure" or "I thought they had" provided consent. By doing this we put the onus on the defendant to establish grounds for a reasonable argument that consent had, in fact, been provided.

This seems a hell of a lot more sensible to me!

I'm sorry about the length of this post, but I am answering to three different posters....

ONLY NICE THINGS

00:42 / 27.03.08

Yes - "force" need not be physical - although one would hope that the New South Wales legislature would have a definition more precise than dictionary.com.

(Edit - apparently it does; consent is not obtained - "if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force" - Crimes Amendment (Consent—Sexual Assault Offences) Bill 2007 - in the event of a non-violent threat leading to sex, that would be sexual assault.)

Let's look at how this actually works in law, and go from there.

This from the notes on the 2003 Sexual Offences act, in UK law:

Section 74 defines consent as "if he agrees by choice, and has the freedom and capacity to make that choice". Two fundamental questions need to be answered.

First, whether a complainant had the capacity (i.e. the age and understanding) to make a choice about whether or not to take part in the sexual activity at the time in question.

There is no definition of capacity in the 2003 Act.

The question of capacity to consent can be an important issue when a complainant is voluntarily intoxicated to the point of stupefaction at the time of the incident. In R v Bree [2007] EWCA 256, the complainant alleged that she had been raped after an evening of heavy drinking. Her memory was very hazy and she appeared to suffer gaps in her recollection. The defendant's case was that the hazy recollection was either due to the effects of alcohol which made her forget, or the complainant was lying. In his directions to the jury, the trial judge merely reiterated the statutory definition of consent and stated that the complainant's intoxication may have an impact on her credibility. The defendant appealed his conviction on the basis, inter alia, that the trial judge should have provided greater assistance on 'capacity' and 'consent' to the jury.

In quashing the conviction, the Court of Appeal made the following comments:

The 2003 Act provides a clear definition of 'consent' for the purposes of the law of rape, and by defining it with reference to "capacity to make that choice", it sufficiently addresses the issue of consent in the context of voluntary consumption of alcohol by the complainant;

If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant's state of mind, if intercourse takes place, this would be rape;
Where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape;
Capacity to consent may evaporate well before a complainant becomes unconscious. Whether this is so or not, however, is fact specific;
As regards the summing up, the jury should have been given assistance with the meaning of 'capacity' in circumstances when the complainant is affected by voluntarily induced intoxication, and also whether, and to what extent they could take that into account in deciding whether she had consented.
In summary, R v Bree emphasises the importance of 'capacity to consent' in cases when it appears that a complainant has been extremely affected by the voluntary consumption of drink and/or drugs.

In cases similar to Bree, prosecutors should carefully consider whether the complainant has the capacity to consent, and where independent counsel will present the case, ensure that he/she is instructed to put the Crown's case on this basis.

As well, counsel should be specifically informed of this judgement and its implications for the case in hand.

Prosecutors should consider with investigators whether further, supporting evidence could be obtained to demonstrate that the complainant was so intoxicated that he/she had lost their capacity to consent. For example, evidence from witnesses who can attest to the extreme intoxicated state of the complainant. If the complainant reported the alleged rape soon after it occurred, then the doctor should include in their statement any information as to the complainant's state. In addition, it may be possible to obtain expert evidence in respect of the effects of alcohol/drugs and if relevant, the effects if drink and drugs are taken together As well, consideration should be given as regards experts providing back calculations as regards the level of alcohol in the blood at the time of the incident.

HCAs and counsel should be prepared to remind the trial judge of the need to assist the jury with the meaning of capacity. Although the judgement provides no definition of 'capacity', assistance can be gained from the common law which is summarised in Rook and Ward on Sexual Offences Law and Practice (3rd edition) at paragraph 1.94 as "a complainant will not have had the capacity to agree by choice where their understanding and knowledge were so limited that they were not in a position to decide whether or not to agree". It is also worthwhile to bear in mind R v Lang (1975) 62 Cr.App.R. 50 in which the Court of Appeal considered the question of whether an intoxicated complainant understood her situation and was capable of consenting under the 1956 Act. The Court found that the prosecution had to prove that the complainant's:

"..understanding and knowledge were such that she was not in a position to decide whether to consent or resist."

Second, whether he or she was in a position to make that choice freely, which is not constrained in any way. Assuming that the complainant had both the freedom and capacity to consent, the crucial question is whether the complainant agrees to the activity by choice.

Italics mine, to address Peter's worry number 3, above.

The "Bree" referred to is the case of Benjamin Bree, who was released five months into a five-year sentence for rape, on the grounds that the jury was not given sufficient guidance on the issue of capacity. Sir Igor Judge said in the ruling on that appeal that neither was committing a crime by drinking to excess:

"Both were free, if they wished, to have intercourse with each other," he said.

The issue was whether the complainant had drunk enough either to make the apparent provision of consent impossible (that is, drunk to unconsciousness) or that she had not given consent. Bree claimed that he had a reasonable belief that she had. This is unique to rape as an offence - that whether the defendant sincerely believed that he was not committing a crime has force in law - this is also one reason why comparisons to being hit by cars are not very useful, especially when we are talking about the forcible sexual assault of another human being. Back to the CPS on the 2003 Sexual Offences Act.

In the offences of rape, assault by penetration, sexual assault and causing a person to engage in sexual activity without consent, a person (A) is guilty of an offence if (s)he:

Acts intentionally;
(B) does not consent to the act; and
(A) does not reasonably believe that B consents.
Deciding whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents (subsection (2) of sections 1-4). It is likely that this will include a defendant's attributes, such as disability or extreme youth, but not if (s)he has any particular fetishes.

This is a major change in the law and the Act abolishes the Morgan defence of a genuine though unreasonably mistaken belief as to the consent of the complainant. It means that the defendant (A) has the responsibility to ensure that (B) consents to the sexual activity at the time in question. It will be important for the police to ask the offender in interview what steps (s)he took to satisfy him or herself that the complainant consented in order to show his or her state of mind at the time.

The test of reasonable belief is a subjective test with an objective element. The best way of dealing with this issue is to ask two questions.

Did the defendant believe the complainant consented? This relates to his or her personal capacity to evaluate consent (the subjective element of the test).
If so, did the defendant reasonably believe it? It will be for the jury to decide if his or her belief was reasonable (the objective element).

Now, what the Bree appeal did do was to address an omission in the 2003 Sexual Offences Act, where voluntary self-intoxication, as opposed to having been drugged, was not identified as a specific cause of reduced capacity to consent. David Blunkett explained this by saying, in much the same wise as Peter:

I have rejected the suggestion that someone who is inebriated could claim they were unable to give consent - as opposed to someone who is unconscious for whatever reason, including because of alcohol - on the ground that we do not want mischievous accusations.

It was to address this that Sir Igor said:

Capacity to consent may evaporate well before a complainant becomes unconscious

When capacity to consent evaporates and whether a reasonable belief in consent could be sustained are both questions which have to be decided by a jury on the available evidence.

A quick pause, to remember that juries and judges are often not great on rape.

An ICM poll for Amnesty International in 2005 found that more than a quarter of respondents thought a woman was partially or totally responsible for being raped if she was wearing sexy or revealing clothing.

Some 30% said that a woman was partially or totally responsible for being raped if she was drunk, and 37% held the same view if the woman had failed to clearly say "no" to the man. (Radnofsky, 2007 - the same report finds that a promiscuous woman is in the eyes of 8% of respondents entirely responsible for being raped - pretty depressing stuff. Report here.)

This clarification came not just out of the declaration of mistrial on the Bree case, but from concerns about prior cases, most notably that at Ruari Dougal, where Justice Roderick Evans directed a jury to acquit on the grounds that the complainant, under cross-examination, admitted to being unable to remember having given consent (or having not given it). Interview with the victim here. Depending on how you look at it, this was either a common-sense victory over precisely the sort of regret-rape accusation Peter is worried about, or a double-team by two men that prevented a case from going before a jury, the traditional method by which innocence or guilt is established in UK law.

So, that's roughly where things stand at the moment - a consultation in 2007 concluded that Sir Igor's interpretation of the 2003 Sexual Offences Act provided a clear guideline on capacity, and by extension that David Blunkett douched out in 2002 (opinion model's own). And, to go back to our starting point, it suggests that in a sensible legal framework the answer to Peter's question:

Should some responsibility not lie with the victim to ensure they don't get so drunk that they accept otherwise unwanted advances?

Is "about as much as they should be held responsible for foolishly hanging around with people who turn out to be rapists".

(Oh, P.S., for anyone who is still reading - there is a degree of doubt as to whether the proposed bill Peter mentions actually said what he believed it to have said, or indeed whether it was in fact defeated - see here and below, where we will hopefully sort that out.