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Sexual Offenses and Consent

Published online by Cambridge University Press:  09 June 2015

Nathan Brett
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In this paper I address a question that has not been a prominent feature of cases or articles which have concerned the issue of consent in relation to sexual offenses. Much work has been done by judges and legal theorists regarding the defendant’s beliefs about the consent of the complainant and the mental element or mens rea of this offense. But, any answers to these questions presuppose some answer to a prior question: What is consent? What must be true of a person who does consent? What must be missing, on the other hand, in a situation where sexual activity takes place without consent?

Common sense provides a relatively simple answer to these questions: To consent is to give permission; a person acts without consent where no such permission has been obtained. It is this answer that I want to defend in this paper. This view assumes that talk of consent only makes sense in relation to some autonomy right. Giving consent involves autonomously making changes in a prevailing pattern of rights and obligations. It is a limited withdrawal of a right not to be interfered with; and it will make legally permissible actions that would otherwise be subject to criminal and civil penalties. To me it seems obvious that such a change in the prevailing pattern of rights and obligations can only take place where there is communication between the parties. This means that the question of consent is not just a question about the state of mind or attitude of the complainant. Rather, the matter which should be central to a court’s consideration of consent is the question of what was said or done that could be construed as granting permission to do the acts in question.

Type
Research Article
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Canadian Journal of Law & Jurisprudence , Volume 11 , Issue 1 , January 1998 , pp. 69 - 88
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1998 

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References

1. The best known of these problems is undoubtedly the one raised by the Morgan case, in which it was held that an honest belief in the complainant’s consent eliminates the mental element of the offense—whether or not this belief was reasonable. See the British case DPP v. Morgan, (1975) 2 All. E.R. 347. The comparable Canadian case is Pappajohn v. the Queen [1980], 2 S.C.R. 120. Three of the many important articles about this are E.M. Curley, “Excusing Rape” (1976) 5 Phil. & Publ. Aff. 5, reprinted in Arthur & Shaw, Readings in the Philosophy of Law, 1st ed. (Englewood Cliffs, NJ: Prentice Hall, 1984) 367; L. Bienen, “Mistakes” (1978) 7 Phil. & Publ. Affairs. 224; and M. T. Thornton, “Rape and Mens Rea” (1982) Can. J. of Phil., Supplementary Vol. VIII, New Essays in Ethics and Public Policy, eds., K. Nielsen & S.C. Patten 119.

2. Editors, “Forcible and Statutory Rape: A Review of the Operations and Objectives of the Consent Standard” (1952) 62 Yale L. J. 54 at 55.

3. A.W. Bryant, “The Issue of Consent in the Crime of Sexual Assault” (1989) 68 Can. Bar Rev. 94 at 108. Bryant does not accept in an unqualified way the conclusion of the argument (that the test of consent must be purely subjective). But he does not express any reservations about the premise that “consent is a state of mind.” Bryant also refers to the “complainant’s non-consent” which the Crown must prove as “the existence of a negative state of mind” (96).

4. This is not to say that in medical contexts there is no such thing as implied (as opposed to explicit) consent. But implied consent itself is not properly analyzed as an attitude.

5. See RW. Young, The Law of Consent (Sidney: Law Book, 1986) at 7–9, for one statement of the view that ‘consent’ has varied meanings. See also Bryant, supra note 3 at 152: “The meaning of consent is markedly different for the offense of sexual assault than for other areas of law, such as property offenses or tort law.” D. Stuart rejects this view in Canadian Criminal Law, 2nd ed. (Toronto: Carswell, 1987) at 469.

6. Supra note 2 at 55.

7. A.W. Bryant, supra note 3 at 108.

8. Supra note 2 at 65. Notice that die general acceptance of this view of consent would dramatically alter the direction of medical practice, democratic theory, and much else. This point is well argued by J. Kleinig, “The Ethics of Consent”, in Nielsen & Patten, eds., supra note 1 at 93–96.

9. Regina v. Olugboja (1981), 3 W.L.R. 592.

10. Ibid, at 592.

11. Supra note 2 at 58.

12. R v. Donovan (1934), 2 K.B. 498 (C.C.A.). The quote continues, “unless the jury is satisfied beyond reasonable doubt that the conduct of the person has been such that, viewed as a whole it shows that she did not consent, then the prisoner is entitled to be acquitted.” This precedent is quoted in R. v. MacTavish (1972), 8 C.C.C. (2nd) 206 and again in R v. Abraham (1974), 26 C.R.N.S 390 according to D. Stuart in Canadian Criminal Law, supra note 5 at 470.

13. This needs qualification. Even if we restrict ourselves to the context of sexual consent, there may be (even on the attitudinal model) conditions other than this attitude which are necessary for legal consent. If the person is too young, for example, she may be mistaken in thinking that in having an attitude of agreement she is legally consenting. There are comparable problems with other mental conditions relevant to crime, where (on standard “dualistic” analyses) internal and external criteria must be brought together. Thus, a child might act upon an intention to kill without having the mens rea necessary for homicide simply because of the objective fact that he is six years old.

14. Supra note 1. Strictly speaking, “honest belief is a pleonasm. What sense can be made of “dishonest belief? It might be thought that this contrast makes room for beliefs acquired (or maintained) through wilful ignorance or recklessness as to the evidence. But, this would eliminate the contrast between the reasonableness and the honesty of beliefs, which is central to cases such as Morgan and Pappajohn.

15. Pace Catharine MacKinnon. Of course, if we accept that the background situation for women is always one of domination akin to coercion, this conclusion will follow.

16. The view that one can be mistaken not only about whether one has given consent, but also about whether one is giving consent is likely to meet with scepticism, since it generates a possibility of reasonable doubt that is not present in the attitudinal model of consent. See below Section 8 and the cases given infra in Section 7 (ii).

17. Again, this needs qualification. It is the law’s implicit dualism that is forcing this choice between “subjective” and “objective” here, and I am not comfortable with this dichotomy. Of course consent presupposes a conscious subject with beliefs, intentions, purposes etc. But neither party in a sexual encounter can make “No” mean “Yes” (or vice versa) just by thinking it. A variety of factors can vitiate consent (force, fraud, exercise of authority, etc.) but these, too, are objective features of the situation.

18. J. L. Austin, How to Do Things with Words, J. O. Urmson, ed., (New York: Oxford University Press, 1965) 1. (Hereinafter Austin.)

19. There is no simple grammatical test that determines whether one is acting or reporting an act (as Austin makes clear). “I am promising Sue that I will give her a ride” (said to a third party) is not the making of a promise. But “You may consider that I have promised you this…” could be used to make a promise.

20. These are Austin’s examples.

21. Austin points out that, although this is not possible in English, there appears to be a practice of making insults that involves the German equivalent of “I insult you!” See Austin at 30.

22. Austin, Chapter VIII; see also J. R. Searle, Speech Acts (Cambridge: Cambridge University Press, 1969) Ch. 2; W. P. Alston, The Philosophy of Language (Englewood Cliffs, NJ: Prentice-Hall, 1964) ch. 2.

23. Supra note 18, at 102.

24. The reader (like the author) may have a nagging doubt that any word containing ‘locution’ as a root can be legitimately applied beyond the realm of speech acts. This is partly a matter of stipulation. Since Austin coined these terms in the process of articulating what we can do with words, he used terms that identify speech acts. It remains true, however, that these general categories of acts (voting, vowing, promising, consenting) can also be done without words.

25. “Communicating” does have an ambiguity that I have not succeeded in avoiding. Strictly speaking, the agreement or permission need not actually be communicated to the other party. It makes sense to say that A consented to B’s advances, but B was so distracted that he did not notice. It is the point, but not necessarily the effect, of the act that it communicate permission.

26. A brief sketch of this model is contained in my “Commentary on Consent” in Anne Bayefsky, Legal Theory Meets Legal Practice (Edmonton: Academic Printing and Publishing, 1988) 253–57.

27. A. John Simmons in “Tacit Consent and Political Obligation,” (1976) 5 Phil. & Publ. Aff. 274, has briefly explored the relation between consenting and promising at 275–78. J. Kleinig points to some of the differences between consenting and promising in showing that consenting is not a passive form of promising in “The Ethics of Consent,” supra note 8 at 114.

28. In terms of Hohfeld’s analysis, the original right, which is given up through consent is a claim-right (and there is a corresponding obligation, of non-interference, in this case). The right which the other party has when consent is given is a permission right and no corresponding obligation (e.g. not to resist) need exist.

29. I owe this point to Brenda Baker.

30. Sartre, Being and Nothingness, H. Barnes trans. (New York: Washington Square, 1966) at 96. Sartre’s own account of the woman’s interpretation of the handholding (as if the hand were a mere thing and its holding devoid of meaning) is not important here.

31. I am assuming that the situation does not involve such coercive features as threats or abused authority.

32. Sexually explicit cinema and TV have made this “private language” more public, but at the same time these media have increased ambiguity as to what constitutes consent by encouraging the belief that the important question is whether the person resisted. This shifts the onus onto the (potential) victim of sexual assault.

33. Such a shift has recently been incorporated into the Canadian law on sexual assault. Section 273.1 of the Canadian Criminal Code (1992) contains a definition of consent that lends itself (though not unambiguously) to the performative interpretation I have been defending: “‘consent’… means “the voluntary agreement of the complainant.” In Section 273.2 an accused person’s honest belief in consent is ruled out as a defense where “…the accused did not take reasonable steps… to ascertain that the complainant was consenting.”

34. Supra note 2 at 65.

35. No doubt this really requires further argument, which would take us beyond the limited scope of this paper. I should say as well that I am not entirely comfortable with the view that belief and preference are properly analyzed in way that makes them private events or states, but this is not relevant to the normative connections which are explored in this paper.

36. According to a classic study of metropolitan Toronto, of the total number of (reported and unreported) rapes which occurred, the highest estimate was that 7% would be convicted, e.g., 17 conviction for 260 rapes in 1971. This is based on an estimated reporting rate of 40%. Conviction rates for those brought to trial were about two-thirds that for other serious crimes (51% vs. 86%). See Chapter III of Rape: The Price of Coercive Sexuality, L. Clark & D. Lewis (Toronto, ON: University of Toronto Press, 1971).

37. Here one has to bear in mind that there is a significant difference in the finality of consent, when we compare, say, selling a house with sexual contact. As the rules now stand, one remains free to withdraw consent to further sexual contact in a way that one is not free to resume ownership of property.

38. Susan Estridge discusses the role of resistance in relation to rape and compares US law with that of commonwealth jurisdictions in “Rape” (1986) 95 Yale L. J. 6; reprinted (edited) in Arthur & Shaw, Readings in the Philosophy of Law, 2nd ed. (Englewood Cliffs, NJ: Prentice Hall, 1993), 362. Estridge makes a compelling case for the view that within US jurisdictions it is the presence of resistance, not the absence of consent, that is central to rape cases. But she assumes a model of consent similar to the one I have defended. The US courts, I would argue, are using resistance as an indicator of the attitude of the complainant. In the absence of resistance, they have assumed, there is acquiescence; and this is presumed to be consent.

39. I should concede that such evidence might be deemed relevant, whether we conceive the matter of consent to depend upon attitude or upon what was done. My point here is simply that the subjective interpretation naturally leads us away from a concentration on what actually took place in these circumstances, toward something not open to observation. It is not surprising that other, indirectly relevant, matters which can be corroborated were thought to be a necessary part of the evidence.

40. R. v. Sansregret [1985], 1 S.C.R. 570,45 C.R. (3rd) 193 (S.C.C.) Patricia Kazan alerted me to the possible relevance of this case in comments on an earlier draft of this paper.

41. See J. H. Bogart, “Reconsidering Rape: Rethinking the Conceptual Foundations of Rape Law” (1995) 7:1 Can. J. of L. & Juris. 159 regarding the possibility that our concern should be with non-voluntary sex. Bogart defends the view that the harm of rape or sexual assault is better dealt with when rape is considered non-consenting rather than non-voluntary sex (see 162–71).

42. This (reversed) slogan puts the matter inaccurately, of course. The point is that, on the attitudinal account, consent is separable from (and could be opposed to) the meaning of what is said.