The Theory of Sexual Offences - Herring

Question 1

Key general dilemma

Answer 1

> People need to be protected from the unwanted sexual activity which infringes their right to bodily integrity & autonomy (Art. 8 of the ECHR protects sexual autonomy).
But at the same time people wish to be free to express themselves sexually without government intrusion (Munro 2005, Brants 2001, Coughlin 1998).

Question 2

Extract showing wrong of forced sex from experience

Answer 2

> S. H. Pilsbury, ‘Crimes against the Heart: Recognising the Wrongs of Forced Sex’. (2002) 35 Loyola at Los Angeles Law Review 845 at 893-5.

>

Question 3

What is consent: is it objective or subjective?

Answer 3

1. Subjective view of consent = consent is seen as a state of mind of the victim.
2. Objective view = consent is an outward manifestation by V in words or acts which indicate permission is granted to D to do the act.
   - As Nathan Brett puts it: “To consent is to act in a way that has conventional significance in communicating permission.”
3. 3rd view is a combo of there views and requires both a subjective state of mind of V and the expression of that state of min.

> English & Welsh law has adopted subjective view.

Question 4

What is consent: To waive or intend?

Answer 4

> What does consent precisely mean?
Alexander (1996): consent is to forgo one’s complaint against the other’s action.
Hurd (1996): consent requires one to intend the other to act in the particular way.
Difference between two is seen when one reluctantly agrees and shows why it is difficult to draw sharp distinctions between consent & no consent.

Question 5

What is consent: is a failure to voice opposition consent?

Answer 5

> Courts have stressed that AR requires absence of consent, not the absence of resistance or opposition.
In US, if V fails to voice any complaint about sexual intercourse, there can be no rape.
Kessler Ferzan & Westen suggest it’s helpful to separate out assent (and the expression of willingness) and consent (whether the assent reflected a genuine choice).

Question 6

Arguments for objective view of consent

Answer 6

> Donald Husak & George Thomas III take objective view of consent:
-To appreciate what consent is we have to understand the social understandings that surround the event.
-Women feel uncomfortable asking for sex as this is seen as being too forward or distasteful.
-Various conventions have therefore been developed under which consent may be assumed, even if it is not made explicit.
-In light of these conventions, if a woman behaves in a way which would normally be taken to indicate consent, that behaviour should be taken as consent, even if in fact that wasn’t her intention and even if she never explicitly said she wanted to have sex.
-Hope these matters conventions change so that men & women can more openly & explicitly discuss sexual matters, but until then it is unfair to punish a man who assumes the normal conventions apply when the woman does not mean them to.
Joshua Dressler argues that “men should be taught in our culture to seek permission, but women should also be taught in our culture to express their wishes, whether it is to invite or reject sexual contact.”
In ‘Protecting the Public’ 2002 the gov. adopted a view somewhere between Schulhofer’s and Husak & Thomas III’s views.

Question 7

In ‘Protecting the Public’ 2002 the gov. adopted a view somewhere between Schulhofer’s and Husak & Thomas III’s views.

Answer 7

> “Human beings have devised a complex set of messages to convey agreement or lack of it. Agreement or lack of agreement is not necessarily verbal, but both parties should understand it. Each must respect the right of the other to demonstrate or say ‘no’ and mean it. We do not of course wish to formalise such understanding into an unnecessary or semi-contractual agreement; it is not the role of Government or the law to prescribe how consent should be sought and given. It is, however, the role of the law to make it unambiguously clear that intimate sexual acts should only take place with the agreement of both parties.”

Question 8

Concern about reform which requires man to obtain ‘affirmative consent’ from a woman before sex

Answer 8

> Janet Halley (2016):
“They will foster a new, randomly applied moral order that will often be intensely repressive and sex-negative.”
“They will install traditional social norms of male responsibility and female helplessness.”
“The best guys and the worst will be swept into the scope of punishment.”

Question 9

Proposal for reform - John Gardner

Answer 9

> John Gardner 2018:

• Look for consensus not consent.
• He suggests good sex is marked by teamwork:
• “we could think of teamwork as necessarily consensual if we shift our attention from consent (performative) to something more like consensus (cognitive). If we allow these shifts, we can restore our faith in the idea that all acceptable sexual activity needs to be either consensual or agreed in some sense: if it is not licensed by consent or agreement (performative), you might say, it must instead be characterised by an ongoing consensus or agreement (cognitive)… If acceptable sex requires an ongoing consensus, then each partner has the ongoing ability to bring its acceptability to an immediate end simply by ending the consensus.”

Question 10

Difficulties of leaving consent to jury?

Answer 10

> Juries inevitably use general social understandings of consent.
Widespread attitudes towards men and women are built on ‘rape myths’.

Question 11

‘Rape myths’

Answer 11

> Some of the myths are base on how V is expected to react to being rape and how they ought to perform in the courtroom.
Amnesty International Survey 2015 found that 26% of people thought that if a woman wore revealing clothing or had been drunk she was partly or completely responsible for the rape.
In a study by Ellison and Munro, it was found that even people who reject myths at a general level, use them when faced with a specific scenario.

Question 12

Goucher College

Answer 12

> Goucher College, Policy on Sexual Misconduct, Relationship Violence & Stalking (Townson MD: Goucher College 2015):

• Seeks to encourage clearer communication.
• “Consent means willingly and knowingly agreeing to engage in mutually understood sexual conduct.”
• “Relying solely on non-verbal communication often leads to misunderstandings about consent. For this reason and for the purposes of this policy, consent to sexual activity must be expressed in explicit words.”
• “Consent may not be inferred from silence, passivity, lack of resistance, or lack of an active response.”
• “Under this policy, a person is considered incapable of giving consent, or ‘incapacitated’, if his or her judgment is substantially impaired by drugs, alcohol, or some other physical or mental condition.”

Question 13

Consent: what is the status of a mistaken consent?

Answer 13

> Current position = mistake of identity or nature & purpose of act.
Some say we shouldn’t ask “was the mistake sufficiently serious to negate consent?”, but instead “is what D did the act V consented to?”

Question 14

Consent: what is the status of a mistaken consent? What to do if man has behaved in morally reprehensible way? Extreme protection argument - for

Answer 14

> One extreme = “if at time of sexual activity the person would not have consented if they had known all the facts inc. D’s state of mind then there’s no consent.”

• Standards of honesty & probity should be higher between two lovers than two business people for example.
• Having sex with someone can cause them serious harm so D has responsibility to ensure there’s consent.
• It is for each person to decide for themselves what is important or not about their sexual decisions so it should be for V to decide what matters are key for her in relationship. Not for law to label certain mistakes as involving ‘trivial matters.’

Question 15

Consent: what is the status of a mistaken consent? What to do if man has behaved in morally reprehensible way? Extreme protection argument - against

Answer 15

> Would lead to criminalisation of an extraordinary amount of sexual activity.
Alldridge rejects idea that ruses & lies are all part of the ‘sexual game’. As this overlooks serious psychological harm experienced by those tricked into sexual intercourse.
Shulhofer talks about importance of fantasy in sexual matters.
Evidential problems would arise if had to probe deeply into what may or may not have motivated someone to engage in sex.
Bohlander: If the sexual intercourse was enjoyable at the time, can it be said to be harmful when V later discovers the truth?
Dripps: to label it rape may belittle that offence.

Question 16

Consent: what is the status of a mistaken consent? What to do if man has behaved in morally reprehensible way? Moderate view

Answer 16

> Consider if matter V is mistaken on played ‘such a compelling role that she should be dissociated from her decision on account of it.’
Danger this will slip into moral assessment of V’s reasons for deciding to engage in sexual intercourse.

Question 17

Consent: what is the status of a mistaken consent? What to do if man has behaved in morally reprehensible way? strict

Answer 17

> Common law restricts ‘rape by deception’ to only most serious cases.
Law decides what is regarded as a fundamental mistake upon the victim.

Question 18

Consent: what is the status of a mistaken consent? What to do if man has behaved in morally reprehensible way? strict - criticism

Answer 18

> J. Herring, ‘Mistaken Sex’ [2005].
Meaning of act depends on cultural understandings surrounding it.
In normal life an act gains its meaning from its context and surrounding circumstances.
Variety of different meanings to different people, e.g. religious significance, physical pleasure, expression of lover, solely procreative act.
Challenge traditional assumption that sexual conduct is a good thing and only criminalise those aspects which are harmful by instead seeking to describe the forms of acceptable sexual connection and criminalise the others as harmful.
Deceit leads people to act against there will which is therefore, negating free choice. Restricting information on which a person makes a choice can be as inhibiting of a free choice as making an option unattractive through a threat. In fact, deception can be seen as worse than a threat as it uses V’s own decision-making powers against herself.
Now the values that should underpin our sexual offences law are those of mutual respect, reciprocity, connection and honesty.
A man who has sexual intercourse with another knowing that that person wouldn’t be agreeing to the the activity if s/he knew the truth is using that person for his own ends. It is the sheer use of another person and should be rape.

Question 19

Consent: what is the status of a mistaken consent? What to do if man has behaved in morally reprehensible way? Criticims of Herring’s view

Answer 19

> James Slater: “Individuals who engage in casual sex should either ensure the trustworthiness of their partners or, if not, minimise or accept the risks that flow from that activity.”
Can it really be expected that before a casual relationship a partner is expected to reveal every aspect of their history & character which may affect their partner’s decision on whether to have sex with them?
Alex Sharp: requiring transperson to disclose their gender history would infringe on the transperson’s human rights.
Hard as produces conflict between partner’s right to sexual autonomy and transperson’s rights to privacy.

Question 20

Consent: what is the status of a mistaken consent? What to do if man has behaved in morally reprehensible way? Rebecca Williams

Answer 20

> Rebecca Williams, ‘Deception, Mistake and Vitiation of the Victim’s Consent’ (2007):
“Instead of trying to find a single test capable of providing all the answers, we should instead return to the ‘categories’ approach to mistake cases.”
1. Out of line with subjective approach used in cases of pressure:
-Exists in pressure context under s. 75 to help jury distinguish between reluctant acquiescence and mere submission.
2. Based on unarticulated & unjustifiable assumptions:
-Need to update categories so they aren’t rigid.
-Suggest for example
i) Non est factum mistakes = person cannot be said to be consenting to an activity they don’t know is taking place. Negative “condition” mistakes.
ii) Physical difference mistakes = includes cases of disease transmission and also ‘whole identity’ cases, where V mistakes D for another person altogether, real or fictional, known personally or not. Doesn’t include mistakes that don’t make physical difference to act. No need to distinguish between positive ‘reason’ mistakes and negative ‘condition’ mistakes.
iii) Legal qualification cases = doesn’t matter if qualification in question was the defining characteristic or positive reason for the interchange.

Question 21

Consent and pressure - questions

Answer 21

> Should sexual intercourse procured by the use of illegitimate threats be regarded as rape? Or be criminalised through different label?
What about lesser threats?
Where should the line be drawn?
Should a line be drawn between a threat and an offer?

Question 22

Consent and pressure - where should the line be drawn?

Answer 22

> Some commentators think nothing less than a threat of death or serious injury should suffice.
Others, e.g. Waye, think the key question is not so much the nature of the threat, but the appropriateness of the pressure:
-Would require moral assessment of the pressure used, but there’s no clarity on what the generally accepted moral standards of the kinds of ‘seduction techniques’ that are permissible.
Susan Leahy advocates creating a particular offence of procuring consent to sex by threats to avoid problem of deciding which threats consent however, this risks implying that rape by threats is less serious than other rapes.

Question 23

Consent and pressure - should a line be drawn between a threat and an offer?

Answer 23

> Some commentators, e.g. Stannard & Wertheimer, have suggested that it is useful to distinguish cases where D has threatened harm to V unless she agrees to sexual activity (vitiates consent) and cases where D has made an offer to V (doesn’t invalidate consent).
Creates distinction that the emotion of hope is less powerful than the emotion of threat and therefore less likely to interfere with a person’s authority.
However, on basis of view that law should focus on effect of the threat or offer to V rather than the classification of the threat as an offer or threat, and so in both cases the level of pressure on V could be the same and it is artificial to distinguish.
Position creates uncertainty in the law, especially for D.

Question 24

Consent and pressure - social pressures

Answer 24

> Feminist commentators: we live in a culture where there are strong social expectations that men should be allowed to have sex with women as they wish.
A 2013 study for the Children’s Commissioner found that girls under 16 felt it was expected a girl would consent to sex with her boyfriend and that something was wrong if they did not consent.
NUS Survey 2012: “ ‘Lad culture’ was seen as a ‘pack’ mentality… it was thought to be sexualised and to involve the objectification of women, and at its extremes rape supportive attitudes and sexual harassment and violence.”
Kaplan: Danger that if idea of ‘rape culture’ is taken too far, we may conclude that we live in a patriarchal culture in which no woman consents to sex, which would harm women’s sexual autonomy and seem to deny the possibility of consensual pleasurable sex.

Question 25

Consent: intoxicated mistake - Wertheimer

Answer 25

> A. Wertheimer, ‘Intoxicated Consent to Sexual Relations’ (2001):

1. Impermissibility claim = if B consents to sexual relations whilst voluntarily intoxicated, it is impermissible for A to have sexual relations with B.
2. Intoxication claim = Intoxicated consent is invalid consent as undermines capacity requirements. Intoxication entails invalidity, and so it also entails the impermissibility claim.
3. Responsibility claim = B’s intoxication is voluntary so B should be responsible for intoxicated behaviour.
4. Validity claim (a.k.a responsibility entails validity claim) = B’s intoxicated consent is valid.
5. Consistency claim = if people held responsible for wrongful acts while intoxicates then we should treat B’s consent as valid. Reject impermissibility claim by drawing analogy between intoxicated consent and intoxicated criminal behaviour.

Question 26

Should consent be enough?

Answer 26

> Catherine MacKinnon 2013:
-“The problem with consent-only approaches to criminal law reform is that sex, under conditions of inequality, can look consensual when it is not wanted… Men in positions of power over women can thus secure sex that looks, even is, consensual without that sex ever being freely chosen, far less desired.”
Consent approach = ignores social pressures & is too narrow.
Reflects image of active masculinity & passive femininity.
Nicola Lacey:
-“Consent is currently understood not in terms of mutuality but rather in relation to a set of arrangements initiated, by implication, by the defendant, in an asymmetric structure which reflects the stereotypes of active masculinity and passive femininity.”
Concepts of mutuality, communicative sexuality, and sexual responsibilities can be developed to find a different approach however, they lack the simplicity and practical benefits of a consent-based approach.
So what moral work does consent do?
How does consent distinguish rape from permissible sex?

Question 27

> So what moral work does consent do?

>How does consent distinguish rape from permissible sex?

Answer 27

> J. Herring, ‘Rape and the Definition of Consent’ 2014:

• Consent provides D with justifying reason for having sex.
• D in this contest, is permitted to rely on V’s assessment that the act is overall in V’s best interests.
• Madden Dempsey (2013): “This is [V]’s decision… I will assume that his decision is the right one for him. After all, he is in a better position than I to judge his own well-being.”
• Dempsey’s model of consent emphasises responsibility.
• “Approach advocated in this article means that more is expected of D than simply listening to whether V says ‘yes’ or ‘no’. A proper respect for sexual integrity should allow the telling of a V’s story of what happened before the incident, and the contest within which it took place. D should be listening to what V is saying about the proposed act as it is likely to require appreciating how V understands the act within its wider relational and social meaning; so that D can be assured that the act is one which V has properly assessed as promoting her well-being.”

Question 28

MR for rape - the intent-based view

Answer 28

> Only rape if D intends V not to consent.
Rare.
This view has received little support.

Question 29

MR for rape - subjective recklessness view

Answer 29

> This view requires proof that D knew or believed that V did not consent - D = Cunningham reckless as to V’s lack of consent,
This view would acquit a D who unreasonably took the view that V consented.

Question 30

MR for rape - the Morgan view

Answer 30

> In Morgan 1976, HoL developed view that D is guilty unless he positively believes V consented.
Different from subjective recklessness view because it includes state of mind where D knows V isn’t consent AND includes D who doesn’t consider if V consents, or could not care less.
Objection to Morgan decision:
-It is easy easy for man to have reasonable grounds for his belief, if he is in doubt, he just has to ask.
-Pickard, Wells, Charlow = if D gets it wrong he causes enormous harm so one simple, easy step doesn’t seem onerous duty.
For Morgan decision:
-Very few support.
-Professor John Smith = Person who has chosen to have intercourse with V without her consent of the same blameworthiness as someone who has carelessly not checked if V is consenting.
-Negligence is no longer used for OAP so be anomalous to introduce it just for rape.

Question 31

MR for rape - the negligence view: ‘unreasonable belief’

Answer 31

> Was D’s belief of V’s consent reasonable?
Approach adopted by SOA 2003.
Whether a reasonable person in D’s shoes would have reached the decision that V was consenting.
Although, Taslitz points out many men are ‘wilfully blind’ to the truth, i.e they have deliberately deceived themselves as to what V was thinking.
Increases conviction rate, which Home Office said was low in 2002.
Under jury test, it is difficult for jury to be sure D didn’t think V was was consenting.
Byrnes: Less concerned with what was going on in V’s mind and more what reasonable person would think V’s attitude was to proposed act. Remove difficult lines of cross-examination.

Question 32

MR for rape - Tadros criticism of reasonable belief view set out in SOA 2003

Answer 32

> V. Tadros, ‘Rape without Consent’ (2006):
-“Pure objective tests do not adequately discriminate between Ds whose beliefs show insufficient regard for the interests of others and Ds who are stupid, naive or ignorant.
“Vague standards tend to lead to the under-enforcement of rape.”
“Evidential provisions of the SOA leave far too much open to ‘interpretation’ by the courts, or rather to manipulation & under-enforcement.”
“In treating the relevant circumstances as evidence of a lack of consent rather than as constitutive of the offence, the Act fails to recognise the proper significance of, for example, violence or involuntary intoxication.£
“SOA still retains the multiply ambiguous concept of consent as the central idea around which the law of rape is constructed. This problematically supposes that a single concept is capable of capturing all of the different ways in which the sexual autonomy of the complainant might be undermined by the D… vagueness…open to exploitation throughout the criminal process.”

Question 33

MR for rape - the negligence view: ‘unreasonable formation of belief’

Answer 33

> Similar reasonable belief view but instead of asking whether the decision actually reached is reasonable, it looks at where D had acted reasonably in forming the belief that V consented.
Focuses on the reasoning process.
Simon Gardner = ensures Ds suffering from mild learning difficulties or are sexually inexperienced and try their very best to ascertain whether V is consenting, but reach the wrong conclusion, aren’t convicted on basis that reasonable person would have known V did not consent.
Jury will find it hard to work out reasoning process D used in reaching that conclusion.

Question 34

MR for rape - strict liability approach to rape

Answer 34

> Harsh on Ds who on perfectly reasonable grounds believe V consents.
Balos & Fellows suggest that if there’s a pre-existing relationship there is a heightened duty on the man to ascertain accurately whether the woman consents to sex. Where D fails to obtain consent, he is guilty even if believed acting reasonably in GF. Also if violence characterises relationship, any consent will be presumed to be invalid.
Daniel Bryden rejects their analogy as their approach portrays women as feeble, weak & powerless.
Maybe strict liability just for when man has had sex with a woman who manifested some kind of opposition to it.
What if V changes mind mid-way?
Susan Estrich argues that repeated requests for sex are inherently coercive.
Kinports: what are regarded by some men as ‘seduction techniques’ appear to some women as threatening behaviour.
Weiner: perhaps lack of open communication & understanding between the genders is the key difficulty in tackling the issue of unwanted sex.

Question 35

AR of rape

Answer 35

> Should it be restricted to penetration of the vagina, or should it include penetration of the anus & mouth as SOA 2003 states?
Uniquely includes risk of pregnancy.
Do public need to be made more aware of rape of men by men or men by women.
Siobhan Weare argues that the physical, emotional and psychological impact of forced sex for male victims can be just as serious as a woman who has been forced to have sex,
While fear of rape impacts significantly on the lives of women, there are few men for whom fear of rape impacts on their life.
Restricting rape to rape of women recognises the gendered impact of the offence.