Shifting Sands? Consent, Context and Vulnerability in Contemporary Sexual Offences Policy in England and Wales

Abstract

Although the consent threshold remains fundamental to the demarcation of acceptable from unacceptable forms of behaviour within contemporary sexual offences law and policy, there has clearly been a shift in recent years in England and Wales towards more ‘contextual’ understandings and interpretations thereof. In many respects, this is a welcome development, which has the potential to at least partially redress the problematic assumption of a disembodied, individualistic and self-determining chooser, which critics maintain has underpinned many conventional (liberal) accounts of autonomy. At the same time, however, there are risks associated with this turn to context that require vigilance. More specifically, this shift has opened the door to greater reliance upon the often closely associated concepts of vulnerability and exploitation. In this article, I will argue that, while these concepts can be valuable in highlighting and challenging the constraining conditions under which (sexual) choices may be made, they can also be deployed in the service of moral and political interventions that entrench precariousness in the name of protection and/or increase surveillance in pursuit of responsibilization. To assess their impact, therefore, it is necessary to explore the concrete implications of this turn for those most immediately involved. In the following discussion, I will do so first by highlighting some of its perhaps unintended, but certainly undesirable, effects in the specific contexts of sexual assault and sex work policy. Having done so, I will move on to explore what we might learn more broadly from this experience about the benefits, blind spots and backfire in using vulnerability as a lens and lever for the pursuit of social justice.

Interrogating Vulnerability: Reframing the Vulnerable Suspect in Police Custody

“…Vulnerability typically ‘has connotations of weakness and is generally applied by members of a powerful majority to oppressed groups’ ( Roulstone and Sadique, 2013: 33; see also Brown, 2015; Munro, 2017; Munro and Scoular, 2012). Within the context of the criminal process, vulnerability can take on different meanings, purposes and forms and is most certainly status dependant (see Singh, 2017; see also e.g.…”

“… 10. Similarly, ‘vulnerable’ individuals may reject the label – see Bartkowiak-Theron and Asquith, 2015: 95. See also Munro (2017) for a critique of vulnerability. …”

Legal change and legal inertia: understanding and contextualising Scottish cases in which women kill their abusers

“…It can, of course, be questioned whether legal change-particularly legislative change-should always be the goal of feminist activism (Stubbs, 2003;Daly and Curtis-Frawley, 2006;Walklate, 2008;Burman and Brooks-Hay, 2018). Certainly warnings have been issued about over-reliance on a criminal justice system which discourages an examination of male privilege and the use of violence, and encourages a focus on the individual characteristics of offenders and victims, specific practices and procedures (Munro, 2017;Walklate, 2008). If legal change is going to be considered an effective tool for addressing the inequality which underpins domestic abuse, there must be wider engagement with those involved in the daily implementation of this reform in order for there to be understanding of, and commitment to, the ideology upon which the reform is based.…”

Conceptualizing the role of consent in the definition of rape at the international criminal court: a norm transfer perspective

“…30 This definition opens up the space to articulate the different ways in which the crime of rape undermines the free will of the victim and provides a clear legal standard against which aberrations and other potential instances of rape can be exposed, leading to consistency and clarity in the law. Furthermore, the inclusion of a positive, contextual, definition of consent is reflective of broader practice in domestic and human rights law where consent is defined using nuanced language that recognises and respects individual agency (Grewal 2012, 383;Munro 2017).…”