Who sets the boundaries on sexual behaviour?
Rape has historically been seen as a crime of violence. Now, a UK government consultation proposes a focus on the issue of consent. But how can consent be defined?
Setting the Boundaries is the result of an extensive government consultation exercise on sexual offences law. The document, published in late 2000, proposes a new approach to the scope of this law.
The focus of Setting the Boundaries is on sexual offences, such as rape. But in effect, it makes proposals for the way all sexual relationships ought to be conducted.
This review was premised on the concept of making violence less central to the definition of sexual offences. Rape, for example, has historically been seen as a crime of violence. According to legal commentators Clarkson and Keating, ‘therefore, only threats of death or serious harm vitiate an apparent consent. However, the more rape is perceived as an offence against sexual autonomy, the more open-ended become the types of constraints which may nullify consent’.
Setting the boundaries, however, proposes that sex crime should be seen as a breach of individual freedom of choice, rather than as a crime of violence. The recommendations make no mention of violence, and instead concentrate on the concept of consent. The reviewers ‘thought that rape and sexual assault are primarily crimes against the sexual autonomy of others.…[They] concluded consent was the essential issue in sexual offences, and that the offences of rape and sexual assault were essentially those of violating another person’s freedom to withhold sexual consent’ (1).
Consent has never been defined in law: the law’s previous emphasis on rape and sexual assault as offences of violence meant there was no need to define it. And, as is clear from Setting the Boundaries, such a definition is highly problematic.
Rape has two elements: having sex with somebody without their consent, in the knowledge that they did not consent. Both elements need to be proven for the charge to stand. The view that rape is a crime of violence is sensible in drawing together these two elements – it assumes both that the unwilling woman will struggle, and that the rapist will force her with some violence. Both parties are assumed to have some responsibility – the woman for making her wishes clear; the man for ignoring clear signs of resistance.
The reviewers found it difficult to define consent (‘free agreement’). No wonder. When do we freely agree to have sex? What if we are drunk, too tired? What if we always have sex on Friday nights, but don’t feel like it?
In short, what is the difference between reluctant acquiescence and free agreement? And is it appropriate to suggest that these acts be made illegal?
The problem with the proposals outlined in Setting the Boundaries goes beyond difficulties with defining consent. They imply that the defence needs to prove what steps were taken to ensure free agreement. This represents a step away from the presumption of innocence, where the defendant needs to prove nothing. Indeed, the emphasis of the report is that the complainant need not have indicated that they did not consent:
‘in deciding whether the complainant freely agreed to sexual intercourse on the occasion in question you should not assume: (2)
that the complainant did freely agree just because they did not say or do anything;
that the complainant did freely agree just because they did not protest or physically resist;
that the complainant did freely agree just because they were not physically injured.’
The reviewers make the following recommendation on who should be considered guilty of rape under the new regime:
‘Anybody who is so reckless as to consent that he did not seek to take all the steps that were reasonable in the circumstances to find out whether he had free agreement would not under our proposals be able to argue that he had an honest belief in consent’ (3).
They go on to argue: ‘A defence of honest belief in free agreement should not be available where there was self-induced intoxication, recklessness as to consent, or if the accused did not take all reasonable steps in the circumstances to ascertain free agreement at the time’ (4).
What we are presented with here would be a new definition of rape. Rather than rape being a clear crime of violence, it would be one of recklessness, thoughtlessness or even bad manners. This is the report’s hidden message: an attempt to promote a particular approved form of sex, and an attempt to criminalise other sorts.
Throughout, the report emphasises creating a clear framework through which people can understand what is an appropriate relationship, rather than simply understanding what is against the law: ‘it is important for society as a whole for sexual relationships to be based on mutual respect and understanding’ (5).
The proposals laid out in Setting the Boundaries are problematic for two reasons. Rather than proscribing and defining inappropriate sexual behaviour, the report extends the scope of the law into prescribing appropriate sexual behaviour, and defining what that is.
Linked to this, the report’s definitions of consent, recklessness and honest belief combine to give a new emphasis on the responsibility of the defendant to take ‘all reasonable steps’ to ensure that he is not committing an offence. This new emphasis must push further the burden of proof from the prosecution to the defence. Beyond that, it is likely to confuse further the distinction between sex and sexual offences – which will not help rape victims any more than it will the innocent accused.
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(1) Setting the Boundaries, Home Office 2000, p14
(2) ‘Recommended standard direction to juries’, Setting the Boundaries, Home Office 2000, p21
(3) Setting the Boundaries, Home Office 2000, p26
(4) Setting the Boundaries, Home Office 2000, Recommendation 9
(5) Setting the Boundaries, Home Office 2000, p14
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