The Justice Minister’s comments on the idea of ‘positive consent’ in sexual assault cases has rightly raised eyebrows (and some heckles) on all sides in the criminal justice debate. Such a move would no doubt have huge significance for the prosecution of sexual crimes – effectively reversing the burden of proof by giving priority to the claimant’s version of events, and pushing very hard against the presumption of innocence. Those are matters for criminal law scholars to speak to, but there is an underlying issue running right through this debate: the issue of the normative force of consent. (Note: there is a further issue about the conceptual logic of ‘positive consent,’ which would need to be worked through more carefully than a blog post allows). Consent is a rather magnificent concept, wrestled with by philosophers and lawyers for different though related reasons. Philosophers explain that consent can change something that is wrongful into something permissible. It can change an individual project into something that is shared between people. It can allow us to assume obligations that we did not have before. It can allow someone to invade another’s autonomous sphere of action, without being blameworthy. Though consent is not all-powerful - it cannot right every wrong nor create obligations which are contrary to our other moral obligations - in the right context, consent has the power to change the obligations that we have to one another. The law institutionalises some of the power of consent whenever it makes consent the marker between activity that is unlawful and activity that is lawful. Consider the difference between sexual acts which involve inflicting physical pain, and sexual assault. The morally (and legally) significant difference is not the actual acts performed, and although there are differences in the intention of the dominator/perpetrator, the significance of these differences depends upon the presence or absence of consent. Both the dominator and the perpetrator might aim to assume control and to cause some physical pain, but the dominator does so with a consenting partner in order to gratify both; the assailant clearly does not. Sexual crimes provide the most obvious and the most difficult examples of the significance of consent, and the Minister’s suggestion brings these difficulties into sharp relief. Sexual crimes have always been about non-consent, about resistance and powerlessness to stop an unwanted advance. But consent has always been deeply problematic in the realm of sexual conduct because of the circumstances in which consent is given or withheld. Some argue that consent is ‘ambiguous’ or that ‘signals’ can easily be mistaken; that yes can mean no and no can mean yes. Others criticise these arguments as excuses for letting perpetrators of sexual crimes off the hook. Whichever view is taken, we must at least be cautious at the margins of consent, which is where a ‘positive consent’ requirement becomes risky. Marginal cases will often concern conduct where one or more participants are either intoxicated or at least uninhibited; or between young adults and teens who are pressured or simply uncertain about what they want. Requiring proof of positive consent in such cases risks criminalising many who not be clearly blameworthy. The suggested change would reverse not only the burden of proof, but also the whole view of sex as something which is an acceptable, desirable, and dare I say it, ‘normal’ part of human interaction. It would conceive of sexual conduct as wrongful unless consent is given. The law currently takes that view whenever sex involves one who cannot consent, but it is a different thing altogether to presume that one who can consent is a victim unless he or she actually does consent. There may well be policy reasons - to do with protecting powerless victims, and responding to statistics which suggest under-reporting of sexual assaults – that lean towards making such a change. That is for the experts to debate, but that debate must take note of the power of consent and its immense normative significance in ordering our social relationships. Nicole Roughan Lecturer


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