The concept of consent has come up twice in the news in a week. First, a court denied Tony Nicklinson the right to die. The fact he consented to his death was deemed irrelevant. Now, George Galloway has caused a stir by suggesting that being asleep does not preclude consenting to sex. If the context is correct, Galloway claims – for instance, having recent prior sexual interactions with someone and sharing a bed that night – this might not constitute rape. Cue the typical platitudes flooding the airwaves and the Twittersphere, as people rush to express opposition through bare tautologies like ‘rape is rape’, ‘yes means yes’ and ‘no means no’.
Whilst well intentioned, the problem is that consent is not a simple concept at all. As we shall see, the law acknowledges that it’s deeply nuanced. But here’s Britain’s formal definition:
A person consents if he or she agrees by choice, and has the freedom and capacity to make that choice. The essence of this definition is the agreement by choice. The law does not require the victim to have resisted physically in order to prove a lack of consent. The question of whether the victim consented is a matter for the jury to decide…
And good luck to them. They’re going to need it. I don’t want to condemn this language too strongly, because I certainly wouldn’t want the job of framing a substantive definition. But anyone who thinks that cashing out consent in terms of ‘agreement by choice’ will clarify things is being too optimistic. It’s like explaining the nature of a ‘wrong’ act to a child by telling them that it is bad.
But let’s go through this slowly to see why ‘yes’ does not, in fact, necessarily express consent.
First, there’s the simple fact that a twelve year old’s word when it comes to sexual activity counts for nothing. We take it that the young are incapable of consenting, and so even if they say the word ‘yes’ then this would be rape. So consent requires the person in question to be of an appropriate age.
Second, some states have laws classifying sex through deception as rape. Such cases safeguard against, for instance, a twin brother impersonating his other half and thereby extracting the consent of his brother’s wife. The wife will have said ‘yes’ to the act, insofar as it will have proceeded peacefully without force. And yet we intuitively think she will not have consented. This seems to be because the act was not committed ‘with knowledge’, and so once more ‘yes’ need not necessarily mean yes.
Third, British law recognises a context of ‘fear’ as valid grounds on which to conclude that consent was not present. For instance, if a wife experiences sustained domestic violence, and knows refusal of intercourse will lead to severe beatings, when she proceeds to say ‘yes’ to sex this does not mean that she has not been raped. Now ‘consent’ is starting to look like a mental state. It is something you think, not something you say.
Fourth, in relation to Galloway’s comments, most people agree, and the law recognises, that someone who is unconscious cannot consent, and this means that sex with an unconscious person is rape. We may wish to add a provision that this person would have dissented from the act if they were awake, and do so once they learn of what happened. I’m not too sure, but it seems to be that sort of plausible if awkward thought that Galloway is having. Regardless, if a person was unconscious when another person had sex with them, and they would and later do oppose that, this is evidently rape.
Fifth and finally, British law argues that a person may reach a state of drunkenness where they are similarly incapable of consenting to sex, even if they are not unconscious. So a drunken person who says ‘yes’ to sex may still be raped due to an allegedly deficient mental state.
So ‘yes’ does express consent, except, perhaps, when the person is too young, too drunk, too scared or ignorant of the nature of the act they are committing. I say perhaps because I now want to show why each and every one of these qualifications, whilst prima facie intuitive, can cause some real problems upon reflection, leaving that legal phrase – ‘freedom of choice’ – even more slippery and useless than before. Unfortunately, the only crystal clear cases of rape involve sober adults being physically coerced.
The first and fifth qualifications – age and drunkenness – can be taken together. Both are classic cases of what philosophers call the Sorites paradox. I know that if you only have four hairs on your head, you’re bald. In contrast, a million hairs ensures you’re not bald. But it’s baffling to imagine a discrete, definable point at which baldness forms or fades away. It seems that the concepts of maturity and drunkenness are similarly vague. It’s hard to imagine anybody judging that a person who is sixteen tomorrow and decides to have sex the day before is raped. It’s also laughable to say a person who consents to intercourse after half a pint of beer is raped. And yet we also think that twelve year olds definitely cannot consent and neither can anyone drunk on ten shots of vodka and five lagers. Again, I’m glad I don’t have the job of defining the thresholds.
The second qualification was that sex through deception may be rape. Again, the case of a cunning twin brother deceiving his other half’s wife is a powerful one. But if our underlying thought is that this is rape because the woman has sex with a different person than she thinks she does, where is this headed? If someone is waiting for a blind date and asks a stranger if they’re also standing in this public spot to meet them, and they say yes, is any ensuing intercourse rape? What if someone lies about their entire identity, manufacturing a name, job title and income level, likes and dislikes? It’s hard to see how to capture the first case whilst keeping the others out. Richard Chappell has had similar worries.
Finally, the third qualification – that sex within a violent relationship is rape – is possibly the most powerful of them all, but once more the slope seems slippery. Aristotle and Hobbes famously considered the question of whether a man that throws his cargo off a ship to prevent the ship from drowning acts ‘voluntarily’ when doing so. They both end up arguing – yes. Acting from fear does not preclude voluntary action. On the contrary, when you act under fear your act is very voluntary. The same worry can be put here by imagining less fierce threats that test our thoughts. If, for instance, a person says they will cheat on their partner unless they have sex, is this act committed through fear, thereby rendering the expressed consent void and leaving the act classifiable as rape? Take this as a call to help me distinguish the two.