This note seeks to tease out some of the key issues identified and analysed in Professor Robin West’s compelling Modern Law Review Chorley Lecture ‘Consent, Legitimation and Dysphoria’. West’s lecture expertly draws together key debates on consent in the context of sexual and reproductive rights and ethics. Her lecture pushes us to think more deeply about the harms that might be concealed when we uncritically accept consent as the answer to sexual and reproductive oppression. Although West offers many important insights in relation to reproductive rights, particularly around the ‘rightlessness’ of caregiving women, this note focuses on the part of her lecture dealing with the ethic of consent in sexual life.
In her lecture, West explains the trajectory from status to consent as the marker of legal and, by default, moral and legitimate sex, canvasses the age old debates on the essential elements of sexual offences that have been dominated by disagreement over the relationship between consent, force and resistance, and aligns these debates with the contemporary social and cultural turn to affirmative conceptions of consent that shape how we teach the next generation about sexual ethics. The lecture addresses many issues that I too have grappled with in my scholarship. For instance, most recently I have attempted to address questions surrounding how best to delineate the boundaries of permissible and impermissible sexual activity, how to respect sexual agency and autonomy while protecting individuals from sexual violation, and how to embrace the law as both a site of authority and of contestation (see my book here and my contribution here that appears alongside West’s Lecture in the first 2020 issue of this journal).
West raises important questions about what these debates, old and new, erase when they elevate consent to not only the marker of legality but also of legitimacy and morality. In this respect she argues that such an elevation, and the ‘aura of legitimacy’ that ensues, shields from critique sex that, while consensual, may be both unwanted and unpleasurable.
Now, although there is recognition that, with movements such as #MeToo, consensual but unwanted and unpleasurable sex is beginning to be talked about and problematised, West maintains that the specific harms of this type of sex, what she terms ‘dysphoria’, have not received sufficient attention. I agree this is an issue: we have been so preoccupied with defining what amounts to rape or a sexual offence that the larger social justice questions around human social and sexual interaction and what it is about sex in general, not only the prevention of sexual violation, that matters to personhood, have perhaps not been looked at with the same urgency. Indeed, there is little room for complex narratives in a carceral space dominated by a dichotomised approach focused on establishing the presence or absence of an offence and the guilt or innocence of an accused.
However, there are still critical voices within this arena recognising the limits of the criminal justice system, the difficulty in separating crimes into neat categories and the consequences of emphasising wrongs as opposed to harms when responding to potential incidents of sexual violence (e.g., see here and here). Further to this, there is the rise of the ‘court of public opinion’ that, as West acknowledges, has become more active since the #MeToo movement created a more organised and versatile platform for speaking out. In this respect, what has been going on in criminal courts or within governments, across the globe, relating to sexual offences, has been subject to more scrutiny and mass mobilisation from activists questioning what ‘counts’ as a violation in the eyes of the law and critiquing the treatment of those who engage with the criminal justice system.
All of this opens up space for dialogue, as well as contestation and debate, over human behaviour, both that which attracts criminal liability and, importantly, that which does not. This aspect, I feel, is something that has not been fully recognised in West’s piece. While consent does confer a degree of legitimisation on certain behaviour, West herself relies on dichotomies, or at least fails to adequately challenge some of the status quo, especially in relation to what she regards as consensual v non-consensual sex i.e., coercive sex, and how she views the definitional debates on sexual offences i.e., consent or coercion as the essential element of a sexual offence.
In this response I seek to engage more fully with the abovementioned issues and explain how ongoing developments in the law relating to ‘coercive sex’ create an opportunity for dialogue and debate on what this means and the potential to speak about the harms, whether reaching a criminal threshold or not, that arise in this space. In doing so, I am acutely aware of how discussions around sex, consent and the law reflect broader debates on sex as a site of pleasure or danger, with a focus on harms emphasising the latter. In this respect I think West’s intervention is important as she seeks to expose the harms of sex that, while consensual, is unwanted and unpleasurable, as a means to create an environment where truly wanted and pleasurable sex can occur. In this response, I also want to tap into this aspect of her argument and, although she suggests affirmative consent will not address the category of harms she seeks to expose, such as those associated with what she calls ‘culturally mandated sex’, key tenets of affirmative consent, such as the emphasis on communication, could usefully be adopted in the move to civil education she champions at the end of her lecture.
This response is split into the four sections. First, I elaborate on West’s argument regarding the ‘aura of legitimacy’ brought by consent arguing that it also brings an ‘aura of protection’ that is undermined by lingering associations with status when assessing the legitimacy or legality of a sexual interaction. Second, I engage with the definitional debates regarding sexual offences and emphasise the supplementary nature of the consent and coercion-based models. Third, I challenge West’s categorisation of certain forms of coercive sex as consensual, and highlight the continuing need to contextualise sexual interactions even where there is prima facie consent. Finally, I explore how the move to affirmative consent leaves many questions unanswered in terms of what affirmative consent is, how it manifests and its potential impact, but that if the essence of this form of consent is communication it might help to frame sex education and reignite old conversations about what types of environments are conducive to healthy sexual relations.
I From status to consent: questions of legitimation
According to West, there has been a shift away from status, be that the marital status of those involved, their sex or gender, or the nature of the sex, towards consent to determine the legal and moral value of a sexual encounter. So long as consent is given, West suggests, the encounter is generally unobjectionable and it is shrouded in a veil of legitimacy offered by the ethic of consent. While I will elaborate on this further below, particularly problematising the claim that where consent appears to be present in a sexual interaction the natural conclusion is that the background conditions and the motive that triggered such consent are legitimised, I want to think through the continuing role of status in this era of consent. In doing so, I seek to demonstrate how, rather than status giving way to consent, the two have become entwined with the status of the parties to a sexual encounter, in some circumstances, leading to the legitimisation or dismissal of a non-consensual encounter, therefore undermining the protective value of consent within the law of sexual offences.
Consent, it has been said, is the key factor distinguishing rape from sex, it possesses a kind of moral magic or transformative power. Consent, in theory, is thus the outworking of a commitment to individual sexual autonomy and respect for individual sexual choice. So, to take one of West’s examples, in a marriage it is a woman’s choice to engage in sexual activity with her husband that now matters, not her status as his wife. Due to the presence of consent, this sex, between the husband and wife, is not subject to legal regulation/intervention. If we follow this logic, we would assume that the reverse is also true: where there is no consent, the sexual interaction would be subject to legal regulation/intervention. However, the reality is not so straightforward.
As I explained in my contribution to this journal, decisions about whether or not to attach the label ‘rape’ to a sexual interaction are influenced by various factors beyond the absence of consent. Such factors include societal perceptions of what makes an ‘ideal’ rape victim or perpetrator, perceptions that are very much linked to the status of the parties involved in the incident. For instance, public survey research has shown that individuals are willing to excuse sexual acts without consent where the complainant has flirted or has not explicitly said no, and that there is a lack of acknowledgement that sex without consent within a marriage or long-term relationship is rape. Research with juries has also found that where the parties are in, or have been in, a relationship, the complexities of communication dominate discussions of guilt with a focus on the complainant and how she (in the majority of cases) could have and should have made her non-consent known. Such a focus continues despite research identifying the range of survival responses, including freezing and flopping, that kick in when one is subject to attack. Racial bias and beliefs surrounding sexual morality have also been found to play a role in terms of victim credibility, recognition of the harm of the alleged encounter, and the perpetrators guilt. Similarly, the age and achievements of the accused, real and potential, play a role in determining their guilt as well as the suitable punishment. Status, it could be argued, has not given way to consent but remains central to it.
Although the conviction in February 2020 of Harvey Weinstein, a powerful man with celebrity status, demonstrates that status is not always a shield, it took years to expose the prevalence of his abuse, more than 100 women had to come forward before legal proceedings began, and he was acquitted of the most serious charges. For the women who accused Weinstein, their narratives were complex, their responses to the sexual violation a cause of confusion to many and an indication of consent according to the defence. Similarly in the April 2020 case against the former First Minister of Scotland, Alex Salmond, questions around the power of the accused and the potential consent of the complainants were central to the case. Although Salmond was acquitted, subsequent statements made by his defence lawyer, overheard while on public transport, highlight defence tactics that attack the conduct or characteristics of the complainant to bolster consent arguments in sexual offence cases. Such statements include that all he, the defence lawyer, had to do during the case was ‘put a smell on her [the complainant]’. While it could be argued this may be a consequence of the adversarial nature of such trials where a key goal of the lawyers is to challenge, and weaken, the other side’s account, it is highly problematic when viewed from the perspective of this essay.
So, consent not only casts an aura of legitimacy over consensual sex, it also casts an ‘aura of protection’ over non-consensual encounters. As explained by Alisa Kessel, ‘consent promises to protect potential victims from rape, but the effect of that promise is to render the potential victim accountable for both rape and its prevention’. This is what she calls the ‘cruel optimism’ of sexual consent, highlighting the ongoing challenges we face in recognising the harm and wrong of non-consensual sex: while we may (for the most part) acknowledge that non-consensual sex amounts to a violation, the extent of that violation, the harm it entails, and our willingness to label it a legal wrong is subject to value judgments. Such value judgements, as demonstrated above, are still informed by the status of the parties involved in the encounter and the perceptions others have of them. West’s quest to recognise the harms of consensual sex is thus even more difficult. This is not to say we should not be exploring these harms, but that such an exploration needs to be connected to similar lines of inquiry in the context of rape discourse and the elusive question of harm. This brings me on to the next issue addressed in this response: discussions around the legal definition of rape/sexual abuse.
II Definitional debates
The concept of sexual autonomy has been key to understandings of rape and sexual violation. Ideals of individual choice and agency, as well as recognition of the wrong involved in disregarding another person’s agency, are behind calls to place consent, rather than force or resistance, at the centre of laws governing sexual violence. However, as alluded to above, discussions around the precise wrongs or harms associated with the crime of rape represent a contested space. Sexual autonomy has thus been subject to critique for assuming a level playing field between those involved. So, rather than focusing on individual choice, some have emphasised power, or the abuse thereof, and the gender inequality that forms the backdrop of sexual relations, primarily between men and women: this is where we see discussions of coercion come in to take account of these power differentials. While consent may be viewed as preferable to force, some, like Catherine MacKinnon and Scott Anderson as recognised by West, argue that coercion is preferable to consent.
West acknowledges these debates and that, in the main, there has been a cautious rejection of replacing consent with coercion for fear of creating an overinclusive definition of criminal conduct. Such coercive overreach is of course a concern when we think about the many reasons why people might engage in sex and the pressures accompanying these decisions, as West has described i.e., college hook ups, hierarchal relations, dutiful sex. Indeed, she notes that if MacKinnon’s approach to coercive sex was adopted in the law of rape, her category of coerced but consensual sex would be erased, for if it is coerced it cannot be consented to, and thus its harms never known. She argues that we are lacking a discourse or a debate on coerced sex because we either do not recognise it or collapse all sex into that category. I take a different view. I have explored the relationship between consent and coercion in my work, drawing from debates that are occurring at the level of domestic criminal law and international criminal law. The latter adds a new dimension to the discussion because it operates in the context of war and mass violence, bringing the terminology of a ‘coercive environment’ into the discussion and questions whether sex can be truly consensual in such an oppressive context. In both contexts, domestic and international, you see the approaches to rape, those that favour coercion and those that favour consent, often presented in oppositional terms. However, I suggest that these approaches are not mutually exclusive, rather they are supplementary in nature: while the element of consent, or lack thereof, should be the core consideration in determining whether the crime of rape has been committed, the other elements, such as coercion or ‘coercive environments’, as well as more traditional factors such as force, constitute evidence of lack of consent. Explicitly drawing these approaches together in the definition of the crime of rape thus provides the opportunity to further delineate the crime and the conduct that falls within its boundaries.
There will of course be on-going disagreement as to the level of coercion or force that should be categorised as criminal and the point at which those factors undermine individual choice and thus consent, as well as the factors that contribute to a coercive environment and the role of the accused in this environment i.e., is the accused required to have created the coercive environment, taken advantage of existing coercive structures, or simply to have acted within the coercive environment even if they were unaware of its impact on the complainant? But, by connecting the two approaches, the consent and coercion-based approaches, we can begin to have these conversations and identify problematic conduct that may not have been identified before. This brings me to my next point: West’s take on coercive sex.
III Coercive sex
West provides a typology of sex that is legitimated by the ethic of consent, including coerced sex, commodified sex, dutiful sex, hierarchic sex, culturally mandated sex, maintenance sex and reckless uncontracepted sex. Such sex, West argues, ‘might include a lot of sex that is positively harmful, and ought to be regarded as morally problematic, even where it ought not to be legally regulated’. The inclusion of coercive sex in this typology, and the broad range of conduct described as falling within this category, is questionable. Within this category of sex, West includes a situation where sex is given ‘against the backdrop of a vague and unstated promise by a partner that although he could, he will not employ force, may be coercive, but it is also clearly not rape. It is consensual’. The conclusion offered by West is predicated on a perception of the ethic of consent as legitimising background conditions and insulating any consent given in a sexual encounter from critique, regardless of the motive that triggered such consent. Underlying this ethic of consent is a very thin notion of sexual autonomy.
Drawing on my own contribution to this journal, I want to demonstrate how an alternative reading to the coerced sex scenario as outlined by West is possible. Indeed, while I use a similar example to that offered by West in my contribution—that of individuals in domestically abusive relationships perhaps characterised by coercive control as opposed to physical violence, where the perpetrator has gained total control over the victim who does not resist her partners sexual advances and may even initiate sex—I argue that consent offered in such a relationship may be more apparent than real. I come to this conclusion by adopting a fuller conception of sexual autonomy encompassing three dimensions: a positive dimension providing that every adult should be free to decide for themselves what sort of sex to engage in; a negative dimension providing that individuals have the right to safeguard themselves against, and to exclude, any and all unwanted sex; and a contextual dimension forcing an analysis of the broader circumstances under which a choice has been made to help strike the appropriate balance between these former two dimensions. The contextual dimension thus positions the background circumstances to a sexual encounter at the centre of, rather than shielding them from, determinations of whether the conditions of autonomous consent have been breached or a criminal level of coercion has been at play.
To aid this approach I have also explored how certain evaluative tools can be developed to assess the encounter by drawing on United States military law. This regime is of interest as it uses a doctrine of ‘constrictive force’ to take account of coercive encounters or, to use the language from the doctrine, ‘unique situations of dominance and control’, as a result of formal hierarchies i.e., differences in rank, while acknowledging that not all sex within relationships categorised by power asymmetry is rape—something also acknowledged by West. Nonetheless, we can be alert to the dynamics of such relations and develop tools for dealing with this category. I also suggest these tools can be applied outside of formal hierarchies but where a degree of control, either existing or strategically created e.g., abusive intimate relations, is exerted by the accused over the complainant. The language used within the doctrine of constructive force is important. For instance, as mentioned above, often the focus is on what the complainant did or did not do, which can be damaging where the complainant does not act as expected, i.e., they comply rather than scream, initiate sex rather than resist. So, I developed language from the doctrine of constructive force that can be used to aid the application of definitions of rape, perhaps embodied in jury instructions: ‘did the accused create an environment of coercion or a situation of dominance and control’ and ‘was the accused aware of this environment and its potential impact on the complainant’s free will?’. In this respect the motive that triggered consent comes into sharp focus, but it ensures attention is on the actions of the accused and what they did to undermine autonomy and induce consent or compliance, as opposed to a disproportionate focus on the complainant.
This approach can also be applied to other scenarios mentioned by West, such as sex to ensure money for children’s lunches and sex for protection from one man to avoid violent sex with another. In relation to the former you might want to ask whether this act forms part of a broader pattern of abuse, and in relation to the latter you would question whether the woman’s choices were so constrained that this was her only option and while this man may not have created the ‘coercive environment’—to borrow from international criminal law—did he take advantage of it? Such inquiries are necessary if we are to differentiate between real consent and apparent consent, and adequately respond to violations of sexual autonomy. West’s conclusion that the above scenarios are not assaultive fails to acknowledge the very real room for disagreement here. Indeed, part of law’s value is the discursive struggles that occur within it over naming, categorising and delineating conduct that should and should not be subject to criminalisation.
I acknowledge here that it may seem that I am doing exactly what West has been critical of: focusing on the characterisation of the sex i.e., as consensual or not, rather than engaging with the felt harms of the sex itself. The link however will become clear in a moment. While I have drawn out the contextual dimension of sexual autonomy to highlight the background conditions and coercion that might form the backdrop to a sexual interaction, other scholars, such as Nicola Lacey, have previously engaged with sexual autonomy and taken the discussion in a slightly different direction. In her pivotal work on ‘unspeakable subjects’, Lacey questioned what a reading of sexual offences and their underlying principles i.e., sexual autonomy, tell us about, ‘their implicit conception of what is valuable about sexual experience, sexual expression, lived sexuality?’. In other words, she sought to understand why it is we want to protect against sexual violation. Lacey goes on to explain that if we, as sexual beings, are denied access to the means of expressing our sexual desires and do not have our sexuality respected we will be unable to imagine ourselves as ‘a whole being, worthy of respect and capable of self-esteem’.
So, while sexual offences are primarily concerned with negative sexual autonomy i.e., protecting against sexual violation, Lacey’s inquires sought to bring the positive side of sexual autonomy to bear on this conversation, thus requiring attention to the conditions that might be necessary for sexual fulfilment. Sexual fulfilment that, West might say, can only be realised when one engages in mutually wanted and pleasurable sex. In this respect we can see how conversations around criminalisation, harm and sexual self-actualisation can be connected and, in turn, facilitate West’s inquiry.
In going down this route we encounter an ongoing tension in feminist discourse on consent: whether there should be an emphasis on pleasure or danger. This tension, which has been highlighted in contemporary scholarship on #MeToo and the moves towards affirmative consent, forms the basis for the next section of this response.
IV New (and old) conversations on consent and pleasure
West concludes her lecture with a discussion of consent, desire, pleasure and the law, calling for a civil right to be free from unwanted sex which could sit alongside our existing right to be free from non-consensual sex. This right would fill the gap that has been created when consent has been allowed a monopoly over our understanding of harm in the context of sexual relations. Such a right would recognise the harms of unwanted and unpleasurable sex and the hedonic dysphoria (as described by West) that ensues as a result of the fiction of consent i.e., the disconnect between what we think we should be experiencing (satisfaction/pleasure) and the reality (dissatisfaction/pain). Beyond the realms of rights West suggests we turn to education and explain the difference between legal sex and good sex and, at a most basic level, we stop asking whether the sex was consented to and instead ask whether it was wanted.
West’s call reignites old questions posed by Lacey (above), that have also been explored more recently by scholars such as Chiara Cooper and John Gardner, both in terms of what is valuable about sex and why we should not settle for the lowest common dominator, that being consent, when we attempt to distinguish between good/bad, harmful/harmless sex. But there is a danger here of imposing ideals of ‘good sex’ on to others, which can be problematic when this veers into moral conservatism or regressive sexual politics, and of prioritising certain forms of sexual communication, without sufficient attention to the context within which that communication occurs, to identify wantedness. Indeed, this links in with more contemporary debates on sex education which, at times, overlap with conversations around affirmative consent within the legal context.
For instance, recently there has been a call for a move away from sexual risk and towards sexual pleasure in terms of sex education. Here what we see is an attraction to notions of affirmative consent. While there is still disagreement around defining what precisely affirmative consent is i.e., is it a verbal yes, is it body language or conduct etc? Within the education context there has been an emphasis on slogans such as ‘yes means yes’, consent as being ‘simple’, and on the need for an enthusiastic yes to sexual relations. From a legal perspective this approach can be reductive. As explained in the previous section, yes does not always mean yes. In an abusive interpersonal relationship consent might appear enthusiastic, or at the least agreed to, on the surface, but, due to the surrounding circumstances and the exercise of coercion, that agreement is more apparent than real. As such, approaches to affirmative consent that simplify the interaction fail to appreciate the varying degrees of enthusiasm and wantedness (or unwantedness) that sit along the continuum of sex and rape—something West has expertly drawn our attention to. Indeed, she explains that ‘requiring “affirmative consent”, no matter how defined, rather than simple consent will not even begin to address the harms of culturally mandated sex on college and high school campuses; this sex is fully consensual’. Affirmative consent, according to West, lacks the broader perspective needed to recognise the range of pressures associated with certain types of ‘hook ups’ and the harms to health, identity and integrity that might follow.
I agree, to an extent, with West’s point here. For instance, while I maintain that consent is a useful, albeit imperfect, tool to navigate legal responses to sexual violence, I am less convinced of its utility outside of this narrow context due to the binary nature that is often attributed to it and the contractual language that often accompanies discussions of affirmative consent. If we struggle to identify coercion that has the potential to reach a criminal threshold within affirmative, as well as general, consent frameworks, how can we expect such frameworks to identify and respond to non-criminal coercion and/or social/cultural pressures? Nonetheless, I still think affirmative consent, and the conversations that are occurring around this concept, have the potential to promote the more nuanced discussions West is calling for in relation to wanted and unwanted, but consensual, sexual interactions. Indeed, a key underlying principle of affirmative consent is communication. Communication can be tied to concepts such as respect, engagement, mutuality and trust. Paying more attention to sexual communication and these concepts might create a space where individuals can view themselves as active rather than passive sexual beings, become more comfortable with their sexual selves, and, rather than distancing themselves from their own desires they become more in tune with them and with one another. In time it may create an environment where individuals act as a result of their own needs and wants as opposed to external social and cultural pressures, such as those associated with the ‘hook up’ culture described by West, and such actions or inactions are respected by the parties involved.
Consent, then, might have both legitimation costs and benefits, but it is precisely this contested nature of the concept, both in terms of its meaning and application, that allows deeper conversations about the sexual interactions that occur at either ends of the spectrum as well as those occurring in the spaces in-between.