Why consent may not be the most important issue in rape

Many years ago I was part of a team of post-grad criminology students who did a broad study of the crime of rape in Victoria. Among the conclusions of that study was that the prevailing laws relating to rape were inadequate because they treated rape as such an all-or-nothing offence, a simple yes/no issue. And I mean that in the sense of both the issue of consent and defining the act.

The problem is proving, or disproving, whether consent occurred is very complicated. This arises mainly from the fact that sexual intercourse occurs both legally and illegally. Other serious crimes do not have this ambiguity. It is not likely that a person would be acquitted of murder on the grounds that the victim consented to be killed (current debates about assisted suicide, aside). It is equally unlikely that someone might consent to suffer grievous bodily harm or have their house burgled. Those crimes have a prima facie appearance being non-consensual. Sex on the other hand, is generally consensual; non-consensual sex is not as usual, though not as unusual as we would like.

Not only does sexual intercourse have both consensual and non-consensual versions, consent itself can be qualified, diminished or cancelled by the circumstances surrounding its granting. The first recommendation from the report we prepared long ago was that the crime of rape be replaced by a crime which might be called Coercion for the Purpose of Obtaining Sex. This would cover any situation where consent was obtained by fraud, deception, threats, blackmail, administration of a drug or any other behaviour designed to override or distort the free will of the victim. Obviously, physical violence which totally negates the need for consent would sit at the extreme end of that scale.

To a certain extent, this recommendation has now been adopted by the introduction of Sexual Harassment laws which make it an offence to coerce someone to have sex by, for example, threatening to have them fired, or harming their career. The definitions of harassment also include the use of persistence or beleaguerment to "wear down" the victims resistance. Thus we have progressed toward establishing a scale of offences ranging from bullying and blackmail up to such things as drugging and violence to obtain or nullify consent. The term "rape" however is still used to describe the more violent end of coercive continuum as if it were a crime with specific boundaries.

Framing a general law proscribing the use of coercion to obtain sex, however, does not assist in situations where the consent of the alleged victim is compromised by circumstances that are not imposed by the perpetrator. For example, consent can be invalidated when the alleged victim is suffering from a form of mental illness, mental incapacity, sexual ignorance, or the effects of drugs and alcohol. The last two of these are typically self-imposed by the victim.

This is a matter of particular concern. The prevalence of drugs and alcohol in social situations gives rise to a substantial number of cases where consent to intercourse is claimed and then denied, not necessarily in that order. Consider the following scenarios and please note any genders can be substituted. I have used "men" and "women" only because they are the players in the vast majority of these scenarios: 

1.   1. A man and a woman meet at a party. The woman has been drinking heavily. They go to a bedroom. There is a presumption on the man’s part, and it is assumed on the woman’s part, that they are going to have sex but before anything can happen the woman passes out on the bed. The man proceeds to have sex with her anyway.  Rape? Absolutely.

2.   Same as above. The man and woman go to the room. They indulge in foreplay, kissing, undressing, touching but before actual intercourse occurs, the woman passes out. The man has sex with her anyway. Rape? Almost certainly. Why almost? See below.

3.     The couple go to the bedroom and start having sex. During it, the woman passes out. The man continues to complete the act. Rape? Again, possibly but also possibly not.

4.     The man and woman have sex and the woman falls asleep. When she wakes she has no memory of what happened.  She realises someone a man has had sex with her but does not believe that she consented to it. She accuses the man of rape. Rape? Very difficult to establish.

5.     The man and woman have sex. When the woman wakes up the next day she recalls the encounter and recalls that she gave consent however she feels the man “took advantage” of her drunken state in which she consented to something she would not have normally done. Rape? Not according to current laws.

Clearly there are all sorts of variations on these scenarios including the possible inebriation of the man as well.

Of course Number 1 is clearly rape, and so is Number 2, though a court may decide that by participating in foreplay – which might reasonably be seen as demonstrating a desire to have sex – the woman had consented. The question then arises, even if she did consent in the first instance, is that consent invalidated by the woman passing out or falling asleep?

The answer is, yes, the initial consent is invalidated - or is it? A jury could take the view that in consenting to sex in the first place the woman entered into an agreement and falling asleep or passing out did not negate that contract. Now while that seems harsh, this is one derivation of focusing on consent as the critical determinant of rape.

Basing everything on consent willfully given, characterises sex as a kind of contractual arrangement and all contracts place obligations on the parties. The first of those obligations would presumably be that, after the sex has occurred, neither party will accuse each other of rape. The second would be that both parties agree to sex occurring - or perhaps that's the first one. Whatever the priority, there is a possibility that the agreement could be held to be binding even if one of the parties falls asleep or unconscious. 

Of course consent is not usually given in any formal legalistic way. If one party specifically voices the request "Do you want to have sex?" and the answer is "Yes," then you could say an agreement has been entered into. But, in most sexual encounters, agreement is reached by a series of coded invitations and confirmed by actions and responses. However, even in such indirect communications, a contract can be still held to be "implied" and a defense frequently used by men accused of having sex with a woman without consent is that they had an “honest belief’ that she was consenting based on her actions. This has been accepted by courts in many cases.  

As part of the same "honest belief" defense, claims are often made that, while consent was never explicitly given, 'she never told me to stop". This may be taken by a court to sufficient to establish an honest belief. That defense however would not play well in cases where the woman passes out because the prosecution will simply say "Well of course she didn't tell you to stop, she was unconscious." 

But herein lies another fundamental problem. Many people argue that the solution to ambiguity over consent is that consent must be given clearly and unambiguously and that men, as much as for their own protection as anything should make sure that they have clear and informed consent from the woman before having sex. However, what if the woman, for whatever reason, changes her mind? In that case, it must become equally essential for her to state clearly and unambiguously that she is terminating the consent. If a the man continues to have sex with her, after that clear statement of termination, then he has committed rape. But what if she lapses into unconsciousness without formally withdrawing her consent? For the man to continue having sex with her, as in Scenario 3, would clearly by clearly be immoral, distasteful and beastly. But is it technically "rape". Has he had sex with her without consent?

On top of all of these technical considerations is the overarching issue of proof. The critical problem is that, as in Scenario 4, if a woman drinks enough to pass out, then her memories of events immediately prior to that point would be likely to be impaired. If they are not actually impaired, their accuracy would be seriously questioned in court. Since the onus of proof in a criminal trial is on the prosecution, it is up to the alleged victim to prove that she did not give consent but the very fact that she was inebriated to the point of passing out raises doubts as to her capacity to remember the details of the situation and, specifically, whether she gave consent.

Even the Case 1, where she is clearly raped before she could have given any form of consent, becomes a difficult case to prove because the only undisputed facts of the case are that sexual intercourse occurred and, at some point, she passed out. The fact that she does not remember having sex does not mean that she was not conscious, and consenting during it. Even in a scenario where the woman does not actually “pass out” but is just very drunk - confused, perhaps dizzy, unable to stand, not fully aware of what was going on, how can a court reconstruct whether or not there was a moment when she clearly, and with full presence of mind, gave or denied consent?

One way of getting round these problems of defining whether consent was ever given or withdrawn is to virtually ignore the issue and try another approach.

Instead of focusing on whether there some sort of explicit or implied agreement, we could invoke the legal principle o judge the situation in terms of a Duty of Care. We could say that a person who is engaged, or intending to engage, in sex with another person has a duty of care towards them. This would mean that they would not attempt to have sex with them when they were unconscious, semi-conscious, or even just heavily inebriated regardless of any indication, stated or implied, of willingness to participate. In other words, the claim in Scenario 5 that, although the victim gave consent, she had been exploited while under the influence of alcohol, would have legal teeth.

This would mean that the proposed single law, covering Coercion for the Purposes of Obtaining Sex could be accompanied by another law covering acts where sex was obtained, not by coercion but by opportunistic exploitation.

Of course there are problems with imposing a Duty of Care on casual sexual encounters. It would mean requiring individuals to make a judgement about other people’s states of mind which they may not be equipped to make. It would also require them making decisions about other people’s welfare which, again, they might not have sufficient information to make. It is also something that might be unreasonable to expect in the (very likely) situation where both parties are inebriated or drunk affected and not acting responsibly to begin with. And of course, the notion of a men deciding what women "need" could be seen as patronising.

The Law has never generally regarded acts committed when drunk as different from acts committed sober. Being drunk is no defense (or should not be) to assault or murder. This is because the state of being drunk or drug-affected is held to be something the the person in question has willfully imposed on themselves and therefore they are responsible for any act they commit while in that state.  Traditionally, that has been extended to things such as an inebriated woman or man consenting to sex when they might not have done it while sober. The only time when consent is considered to be voided due to the effects of a drug is when the drug was administered by someone else, without the victim’s knowledge.   

However, the Duty of Care principle does not seek to overturn the "right" to consent. It does not concern itself with whether drunken consent is the same as sober consent and does not seek to decide whether a woman is responsible for the consent she gives while inebriated. It makes no judgement on the woman's actions nor her rights or autonomy. It applies entirely to the actions of the other party and how they affect the alcohol or drug-affected individual.

In this sense a law against Sexual Exploitation would in effect mirror the laws against Sexual Harassment which already include a duty of care component. Sexual Harassment does not necessarily require that the offender deliberately exploit their position to obtain sexual favours. It accepts that power does not have to be explicitly wielded as a weapon; the mere fact of someone being in a position to control someone else’s life, career, relationships, etc, can act as a form of coercion towards allowing intimacies even when no implicit or explicit threats are applied. It states that freely-given consent is not necessarily free when it is occurs on an unlevel playing field. People in positions of power or influence therefore have a duty of care not to exploit their position to gain sexual or other favours even inadvertently.

Similarly, a law of Sexual Exploitation would serve as a warning that even in a casual, non-institutional, non-hierarchical environment, any situation where there is a power imbalance - such as a relatively sober man and a woman who is clearly seriously inebriated  - there is a duty of care, irrespective of the matter of consent, not to not take advantage of the situation. The advantage of such a change in the law would mean that it was no longer necessary for a woman to prove that she did not consent, or that she consented initially but changed her mind, or wanted to change her mind but was unable to do so. It would not be necessary to prove what state of consciousness she was in at the time. It would only be necessary to show that the respondent in the matter failed to act in her best interests.