Limitations of Consent in Rape Law
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by Eliza Asare Parbi
Introduction
Undoubtedly, the offence of rape has undergone a historical evolution: from its legislative definition as ‘unlawful sexual intercourse with a woman,’ to a gender- neutral offence accrediting autonomy and consent as the gatekeepers of legality. Just as the law must adapt to the realities of its society, rape law has subsisted in its inherent dynamism - the Sexual Offences Act (SOA) 2003 responding to the Home Office’s stipulation that the law remained ‘archaic, incoherent and discriminatory’ by affording clarity and certainty to the definition of the English consent standard. Nevertheless, the law of consent is far from utopian. While victim reporting has increased, conviction rates remain glaringly low. Evocative of Rush’s ‘filtering-out’ analogy, only 30% of reported rape cases progress to prosecution, 20% are adjudicated and 6.5% result in a conviction of rape. This ‘justice gap’ not only represents the highest attrition rates across Europe but connotes that the offence of rape is regulated by a failing law. The aim of this thesis is to highlight the limitations of consent in both accounting for the experiences of victims and shaping theoretical understandings of rape as well as to advocate corrective reform through an exploration of comparative and academics reconfigurations of consent.
The first chapter will begin by detailing the limitations of the English consent standard including Smart’s assertion that ‘consent’ is a gendered term, perpetuating myths about the passivity of women as well as anarchic regulation of female sexuality. This neatly lends itself to Catharine MacKinnon’s argument that consent cannot account for true freedom or voluntary choice whilst failing to pay homage to the fundamental inequalities in society. Therefore, when considering cases of submission or intoxication, consent is a standard that does not fully address preordained power relations between men and women or the breadth of coercive human behaviour.
The second chapter will progress to outline potential models for the reformulation of consent including Madeleine Leijonhufvud’s ‘voluntary participation’ paradigm. This notion of voluntariness is a continuing thread in the Swedish model which utilises ‘bodily integrity’ rather than consent as the gatekeeper of legality. Consecutively, MacKinnon’s coercive framework, which advocates the use of coercion as opposed to consent, will be detailed. Although MacKinnon’s model does address the power inequalities present in certain rape contexts, Munro’s ‘consent-plus’ model will debrief a purely coercive model and highlight the importance of a preservation of autonomy. This chapter will conclude to take from these models an appreciation that voluntariness, an essential facet of consent, is shaped by context. Therefore, a reformed consent standard must embody an affirmative and ‘uncoerced’ choice on the part of the victim.
The final chapter will recommend the South African model as the best and most feasible model for reform in England and Wales. Not only does this model impute voluntariness into consent but cases such as S v Egglestone signify that consent in South African law is qualified by an absence of coercion. The South African model advances to provide a non-exhaustive list of coercive circumstances that vitiate consent - (including abuses of power between the parties) - whilst enjoining the courts to place context at the forefront of their judicial reasoning. Evidently, South African law strikes a thorough balance between autonomy and coercion whilst retaining applicability to domestic problems - rendering a model of this type a natural legislative step in England and Wales.
Nonetheless, ‘each new law calls forth its criticism, each criticism documents the failure of the law...and each failure calls forth yet more laws of rape.’ Indeed, we must ask whether it is de facto necessary for further reform to ensue. However, reform of this type is not in response to modern societal change or public-political uproar, but instead to a doctrinal appreciation that rape is and has always been an offence of power. Therefore, reform is not to ‘catch up’ to society but instead to recognise that the law has recurrently discounted the power struggle that is entrenched within consent. The aim of the SOA 2003 was to increase conviction rates, however, Rush argues that this ethos ‘devalues the reform effort’ because ‘the rights of the victim are being claimed at the expense of the rights of the accused.’ Although a bold statement, what can be taken from it is a sense that legislative reform should not merely be for quantitative or attritional purposes but for the pursuit of an upright and socially responsible form of justice.
