Towards a Clearer, More Dignified Notion of Sexual Consent
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A final year Law student at King’s College London, Jeremy holds a B.A. (Comprehensive Honors) in English, History, and Political Science from the University of Wisconsin–Madison, an M.A. in Legal and Political Theory from University College London, and an M.P.A. in Economic and Financial Policy from Cornell University where he was a recipient of a Cornell Institute for Public Affairs Fellowship.
The impetus for this article on the English law on sexual consent stems from the fact that since May 2004 when the Sexual Offences Act 2003 (SOA 2003) took effect, there has been a seismic shift in public values and public opinion as to the importance of sexual consent and what such consent actually entails. Driven by a multiplicity of complex and powerful socio-cultural forces, and manifested perhaps most visibly in the Me Too Movement, the notion of sexual consent as conceived by the global mainstream today is one that elevates individual autonomy and human dignity in unprecedented ways. In light of this and the recent case of R v Lawrence [2020], this article argues for the need to amend the SOA 2003 to enable a clearer, more objective conception of sexual consent that better protects human dignity.
- Jeremy Wong, Author
Introduction
There is high consensus in English law, that “sexual offending is different to other offending in private and political terms”.[1] This is likely because sexual activity occupies a special place in human consciousness, wherein a sex act, regardless of its form, often takes on a significance and a host of meanings that have no parallel in any other realm of human activity. As the Me Too Movement (#MeToo) exploded into prominence in October 2017, first emanating from the unraveling of sexual abuse scandals in Hollywood and then gaining unprecedented traction all around the world, the spotlight was shone on the notion of sexual consent like never before. Increasingly, in popular consciousness (particularly in the Western world, though definitely not exclusively), consent became inextricably bound up with human dignity and human agency, with consent being deemed the pivotal factor that makes a sex act legal, bar exceptions surrounding underaged individuals; more specifically, sexual consent had to be given by choice and not a product of coercion or duress.
With such a backdrop in mind, this paper seeks to examine the nature and function of consent in sexual offenses in English criminal law. When the Sexual Offences Act 2003 (SOA 2003) took effect in May 2004, the sexual offenses landscape was transformed, and “the most major changes were in respect of consent”.[2] Clearly, consent (mutual) does not always make a sex act lawful, as evident in ss.5-8 of the SOA 2003, whereby if children under 13 years old are involved, consent is irrelevant. Therefore, this paper’s focus is narrowed further to assessing the application of the notion of consent in s.74 and s.76 of the SOA 2003, and establishing its nature and role in rendering a sex act lawful. In doing so, this paper proposes a clearer, more dignified approach to sexual consent by amending s.74 and s.76(2). As shall be shown, my proposed amended s.74 will engender greater clarity and objectivity when assessing the existence of sexual consent. And in amending s.76(2)(a), the chief objective is to rectify its tendency to cause an overriding of C’s purpose by D’s, as well as a conflation of C’s purpose with D’s.[3] Finally, an attempt is made to amend s.76(2)(b) so as to provide an updated and more detailed guidance on the concept of identity deception, thereby clarifying its role in establishing sexual consent.
[1] Catarina Sjolin, ‘Ten Years On: Consent Under the Sexual Offences Act 2003’ (2015) J Crim L 20, 34.
[2] ibid 21.
[3] “C” refers to complainant and “D” refers to defendant throughout this paper. Note that at times, in case law as well as in journal articles or other write-ups, “C” may also be referred to as “V’ for victim.
