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Modern Law Review
DOI: 10.1111/1468-2230.12461
Towards a Contextual Definition of Rape: Consent,
Coercion and Constructive Force
Eithne Dowds∗
This paper considers ‘consent-based’ and ‘coercion-based’ models of defining rape. It argues
that the ability of these models to adequately protect against violations of sexual autonomy is
dependent on their engagement with the broader circumstances within which sexual choices
are made. Following an analysis of both models it is argued that attempts to contextualise
consent and coercion are often undermined by evaluative framings that encourage scrutiny of
the complainant’s actions at the expense of engagement with the broader circumstances. This
is particularly problematic where rape occurs as a result of non-violent coercion and the victim
does not verbally or physically demonstrate their lack of consent. The paper draws on United
States military law and argues that the doctrine of constructive force, which has been used to
deal with non-violent coercion in these contexts, has the potential to progressively reshape our
contextual and evaluative framings in domestic contexts.
INTRODUCTION
The concept of sexual autonomy has played a key role in enhancing our
understanding of the wrong of rape.1
Encompassed within this concept is the
idea that individuals have the right to make autonomous decisions about their
sex lives. Conceptualising rape as a violation of sexual autonomy has been
central to establishing consent, as opposed to force and resistance, as core to
definitional constructions of the offence. This position has been endorsed by
the European Court of Human Rights.2
The Committee on the Elimination
of Discrimination against Women has even proposed two models of rape law,
one a positive or active model of rape law which centres around the existence
or non-existence of ‘unequivocal and voluntary agreement’ and the other
framed in more negative terms requiring that the act take place in ‘coercive
∗
Lecturer in Law, Queen’s University Belfast. I am indebted to Professor Anne-Marie McAlinden,
Dr Susan Leahy and the anonymous referees for their helpful comments on earlier drafts of this article.
I am also grateful to Dr David Prendergast for organising a roundtable on consent in criminal law in
Trinity College Dublin where I presented an earlier version of this paper to participants, including
Dr Tanya Palmer, who provided me with invaluable feedback, and to Dr Natasa Mavronicola and
Professor Jean Allain. All errors remain entirely my own.
1 See, for example, S.J. Schulhofer, ‘Taking Sexual Autonomy Seriously: Rape Law and Beyond’
(1992) 11 Law and Philosophy 35 and V. Munro, ‘Constructing Consent: Legislating Freedom
and Legitimising Constraint in the Expression of Sexual Autonomy’ (2008) 41 Akron Law Review
923.
2 M.C. v Bulgaria (Application no 39272/98) 4 December 2003.
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Consent, Coercion and Constructive Force
circumstances’.3
These two models are commonly referred to as ‘consentbased’
or ‘coercion-based’ models of rape and variations of them exist in several
domestic jurisdictions.4
Although framed differently, both of these models are
said to retain consent at the centre. However, research on the application
of rape law has shown a tendency for narratives of force and resistance to reemerge
in court processes, with judges, barristers and juries casting suspicion on
complainants who do not physically or verbally resist.5
Consequently, scholars
such as Kelly and Munro have emphasised the importance of engaging critically
with the circumstances under which choices are made to take account of the
‘continuum of coercion’ within which the crime of rape may occur.6
While acknowledgment of the need for a more contextual approach to rape
is welcomed, there has, to date, not been a comparison of the precise analytical
tools that may be deployed under each of the models of rape law. This paper
addresses this gap by examining the definitions of rape in England and Wales
and Canada as examples of the consent-based approach, and Michigan and
Italy as examples of the coercion-based approach.7
These jurisdictions have
been chosen due to the variation in their approaches in relation to how the
elements of consent and coercion are treated for the purpose of the mens rea
and actus rea of the offence.8
Although some commentators have emphasised a
3 Vertido v The Philippines (Communication No 18/2008) Committee on the Elimination of Discrimination
against Women July 2010 (Vertido); Council of Europe, Council of Europe Convention
on Preventing and Combating Violence Against Women and Domestic Violence 11 May 2011, para 8.9
(b)(ii).
4 Short-hand language for these models adopted from K. Grewal, ‘The Protection of Sexual
Autonomy under International Criminal Law: The International Criminal Court and the Challenge
of Defining Rape’ (2012) 10 Journal of International Criminal Justice 373. For an overview
of models in the European context see European Institute for Gender Equality, Analysis of the
National Definitions of Rape (EIGE, October 2016) and Amnesty International, Right to be free from
Rape: Overview of Legislation and State of Play in Europe and International Human Rights Standards
Internal Index No: EUR 01/7757/2018 (Amnesty International, 19 January 2018).
5 See, for example, R. Burgin, ‘Persistent Narratives of Force and Resistance: Affirmative Consent
as Law Reform’ (2018) The British Journal of Criminology 1; L. Ellison and V. Munro, ‘Better the
devil you know? ‘Real rape’ stereotypes and the relevance of a previous relationship in (mock)
juror deliberations’ (2013) 17 International Journal of Evidence & Proof 299.
6 L. Kelly, ‘The Continuum of Sexual Violence’ in J. Hanmer and M. Maynard (eds), Women,
Violence and Social Control (Basingstoke: Palgrave Macmillan, 1987) 46; V. Munro, ‘An Unholy
Trinity? Non-Consent, Coercion and Exploitation in Contemporary Legal Responses to Sexual
Violence in England and Wales’ (2010) 63 Current Legal Problems 45, 46.
7 This methodology is similar to what Adams called a ‘representative comparison’ which involves
selecting at least two representatives from identified groups, see A. Adams, ‘The First Rape
Prosecution before the ICC: Are the Elements of Crimes Based on a Source of International
Law? (2015) 15 International Criminal Law Review 1098, 1102. While it is acknowledged that
there is variation beyond these definitions the selected jurisdictions allow for a consideration of
the interplay between consent and coercion.
8 For some background see, United Kingdom Home Office, Setting the Boundaries: Reforming the
law on sex offences 1 July 2000; L. Vandervort, ‘Affirmative Sexual Consent in Canadian Law,
Jurisprudence, and Legal Theory’ (2012) 23 Columbia Journal of Gender and Law 395; J. Temkin,
Rape and The Legal Process, (Oxford: OUP, 2002) on the ‘famed’ Michigan model; R.A. Fenton,
‘Rape in Italian Law: Towards the Recognition of Sexual Autonomy’ in C. McGlynn, and V.
Munro (eds), Rethinking Rape Law: International and Comparative Perspectives (London: Routledge,
2010).
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division between the two models,9
this analysis will demonstrate that the more
either model addresses the context within which a sexual encounter takes
place, the more substantively aligned the two models become. Nonetheless,
it is argued that the models in England and Wales and Canada, where the
element of consent is explicitly included and defined in the applicable law, are
preferable. This is because the legislative definition of rape in these jurisdictions
more clearly reflects rape as a violation of sexual autonomy and provides a more
precise definition in line with the important legal principle of nullum crimen,
nulla poena sina lege, which provides that there can be no punishment without
well-defined law.10
In advocating such an approach, the author is aware of the on-going difficulties
associated with consent-based definitions of rape, especially when a
victim offers what could be described as ‘apparent’11
or ‘survival consent’.12
This may be relevant in the context of, for example, severe poverty, economic
oppression, familial or intimate abuse or other abusive circumstances. As noted
by Munro, discussing England and Wales, although ‘the courts have begun to
grapple with some of these issues within the confines of individual cases . . .
clear principles capable of broad application have yet to emerge’.13
In light
of these ongoing challenges under the consent-based model, the article draws
from military law on rape, in particular, the doctrine of constructive force
utilised in United States military law to provide a way forward. This doctrine
has evolved to take account of the ‘unique situation of dominance and control’
that may be present in certain military relationships or environments and
its impact on the autonomy of the complainant.14
According to Murphy, it
represents an approach that is ‘analytically superior to its civilian counterparts’
in dealing with sexual coercion not amounting to physical force.15
As such,
it is argued that this doctrine provides a useful tool to bring some clarity and
coherence to this area of law.16
While the discussion here is limited to the
crime of rape, the analytical tools developed may be extended to other forms
of gendered and sexualised violence. Indeed, the thorny issues surrounding
autonomy, consent, constraint and coercion are apparent in the context of sex
9 For a discussion of some of the arguments based on a distinction between the two models, see
V. Munro, ‘From Consent to Coercion: Evaluating International and Domestic Framework for
the Criminalization of Rape’ in McGlynn and Munro, ibid.
10 A. Mokhtar, ‘Nullum Crimen, Nulla Poena Sine Lege: Aspects and Prospects’ (2005) 26 Statute
Law Review 41.
11 R v AC [2012] EWCA Crim 2034.
12 J. Pearce, ‘A Social Model of “Abused Consent”’ in M. Melrose and J. Pearce, Critical Perspectives
on Child Sexual Exploitation (Basingstoke: Palgrave Macmillan, 2013).
13 Munro, n 6 above, 51.
14 United States v Bradley 28 MJ 197, 200 (CMA 1989).
15 T. Murphy, ‘A matter of force: The redefinition of rape’ (1995) 39 Air Force Law Review 19, 26.
16 The author is under no illusions about the inadequacies of military law approaches to sexual
violence, see S. Cernak, ‘Sexual Assault and Rape in the Military: The Invisible Victims of
International Gender Crimes at the Front Lines’ (2015) 22 Michigan Journal of Gender and Law
207. However, it will be argued that there are novel approaches to the crime of rape that can be
utilised by domestic states.
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Consent, Coercion and Constructive Force
trafficking,17
forced marriage,18
prostitution,19
‘survival sex’,20
sexual exploitation
and abuse by peacekeeping forces.21
All of these abuses involve some sort
of power asymmetry or other hierarchical circumstances of compulsion which
may benefit from the analytical tools developed in this paper.
The paper proceeds as follows. The first section will situate continuing expectations
of force and resistance within the ‘real-rape’ stereotype and contrast
this stereotypical understanding of rape with the conceptualisation of rape as
a violation of sexual autonomy. The second section considers the definition
of rape under different legal models. It draws on human rights law and the
development of two dominant models of rape law to demonstrate the way in
which the abstract notion of sexual autonomy may be translated into concrete
legal rules. This section also undertakes a comparative analysis of these models
in the selected jurisdictions of England and Wales, Canada, Michigan and Italy.
The third section draws upon US military law on rape in order to clarify the
relationship between consent and coercion and to propose a new approach.
The final section concludes.
CHALLENGING PERCEPTIONS OF ‘REAL-RAPE’: RAPE AS A
VIOLATION OF SEXUAL AUTONOMY
According to Reiten, rape is an ‘essentially contested concept’, open to differing
and conflicting interpretations.22
Such concepts often have clear paradigmatic
cases, which everyone would agree fall within the concept, and borderline cases,
which may fall within some but not all interpretations.23
Estrich introduced
the term ‘real-rape’ in the 1970s to describe the dominant stereotype around
what constitutes rape and who might be convincingly labelled a victim.24
This
stereotype involves a young virginal victim who is violently attacked at night by
a stranger; she resists but is overpowered and raped sustaining multiple injuries.25
It can be contrasted with what has been termed ‘simple rape’: rape that occurs
within homes by a friend, a family member, a partner or an acquaintance,
with no obvious signs of violence or resistance.26
Evidence demonstrates that
17 J. Elliot, The Role of Consent in Human Trafficking (Abingdon: Routledge, 2014).
18 A. Bunting, B.N. Lawrance, and R.L. Roberts (eds), Marriage by Force?: Contestation over Consent
and Coercion in Africa (Athens, OH: Ohio University Press, 2016).
19 Y. Peng, ‘“Of course they claim they were coerced”: On voluntary prostitution, contingent
consent, and the modified whore stigma’ (2005) 7 Journal of International Women’s Studies 17.
20 V.A. Forro, ‘Survival Sex’ in S. Loue (ed), Mental Health Practitioner’s Guide to HIV/AIDS (New
York, NY: Springer, 2013) 409.
21 M. Henry, ‘Sexual exploitation and abuse in UN Peacekeeping Missions: Problematising Current
Responses’ in S. Madhok, A. Phillips, and K. Wilson (eds), Gender, Agency, and Coercion
(Basingstoke: Palgrave Macmillan, 2013) 127.
22 E. Reiten, ‘Rape as an Essentially Contested Concept’ (2001) 16 Hypatia 43.
23 ibid, 49.
24 S. Estrich, Real Rape: How The Legal System Victimizes Women Who Say No (Cambridge, Mass:
Harvard University Press, 1987) 5.
25 ibid, 1-5.
26 ibid, 5.
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the latter form of rape is more prevalent than the former,27
and that victims
may respond to the attack in various ways, from freezing to flopping to trying
to befriend the attacker.28
Yet dominant acceptance and internalisation of the
‘real-rape’ stereotype works to effectively disqualify these experiences. This
effect is reflected in a 2016 European Commission survey which found that
although 86 per cent of respondents believed that violence against women was
most likely to occur within the home, one-third of respondents considered that
sexual intercourse without consent may be justified ‘in certain circumstances’,
these included not saying ‘no’ clearly or not fighting back (both ten per cent).29
Such perceptions have also infiltrated criminal justice systems, with victims
who do not fit the dominant perception of how a ‘real’ victim should react
being subject to intrusive questioning and treated with suspicion.30
For instance,
a 2015 report into the handling of rape cases in London found that crossexamination
by the defence often focused on a victim’s lack of resistance:
‘Why did they not fight back? What prevented them from shouting out to
attract help or even ask for help from others in the very same room?’.31
In
Canada, Comack found that judicial decisions continue to reflect rape myths
and recently a Canadian judge was forced to resign following his treatment
of a rape complainant in which he asked her why she ‘could not just keep
your knees together’.32
Burgin found similar practices in Victoria with one
defence barrister asking a complainant whether she thought her behaviour
was ‘strange’ and ‘irrational’ because she froze rather than scream or fight
back.33
Unsurprisingly, this type of questioning can be effective from the
defences’ point of view. Research on mock juries carried out by Ellison and
Munro, for instance, found that in cases where women were perceived as giving
mixed signals, the need for strong physical resistance featured heavily in jury
deliberations.34
27 According to the Rape, Abuse & Incest National Network (RAINN), for instance, in the
United States seven out of ten rapes are carried out by someone known to the victim, see
https://www.rainn.org/statistics/perpetrators-sexual-violence (last visited 23 May 2018); In the
United Kingdom, Rape Crisis for England and Wales notes that approximately 90% of those who
are raped know the perpetrator prior to the offence at https://rapecrisis.org.uk/statistics.php
(last accessed 23 May 2018).
28 See, for example, Z. Lodrick, ‘Psychological Trauma – What Every Trauma Worker Should
Know’ at http://www.zoelodrick.co.uk/training/article-1 (last accessed 18 November 2018);
N. Sugar, D. Fine and T. Eckert, ‘Physical Injury After Sexual Assault: Findings of a Large Case
Series’ (2004) 190 American Journal of Obstetrics and Gynaecology 71.
29 European Commission, Special Eurobarometer 449 Report Gender-based violence November 2016,
6-7.
30 J. Du Mont, K. Miller and T.L. Myhr, ‘The Role of “Real Rape” and “Real Victim” Stereotypes
in the Police Reporting Practices of Sexually Assaulted Women’ (2003) 9 Violence Against Women
466.
31 Rt Hon Dame Elish Angiolini DBE QC, Report of the Independent Review into The Investigation
and Prosecution of Rape in London 30 April 2015 at https://www.cps.gov.uk/sites/default/
files/documents/publications/dame_elish_angiolini_rape_review_2015.pdf (last accessed 7
April 2019).
32 E. Comack, Locating Law: Race/Class/Gender Connections (Halifax: Fernwood Publishing, 1999);
A. Wooley, ‘The resignation of Robin Camp: background and reflections from Canada’ (2017)
20 Legal Ethics 134.
33 Burgin, n 5 above, 11.
34 Ellison and Munro, n 5 above.
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The way in which these myths and stereotypes play out in the adversarial
court process has led some to describe the rape trial as the victim’s ‘second
assailant’.35
Research suggests that victims who have a negative experience
within the criminal justice system, due to a lack of sensitivity or victimblaming
attitudes for example, may suffer a detrimental impact on their overall
wellbeing.36
However, despite these challenges and experiences, criminal trials
remain a vital forum for addressing the crime of rape, as reflected in the visible
increase in reporting of rape to the police. For instance, 121,187 sexual offences
were recorded by the police in England and Wales in the year ending March
2017, an increase of 14 per cent on the year before, and in 2017 official reports
in the United States recorded a 19.4 per cent increase in the number of reported
rapes since 2013.37
The persistence of narratives of force and resistance can be linked to regressive
interpretations of rape that view it as a crime of violence in the narrowest of
terms.38
This view can be contrasted with more contemporary understandings
of rape that consider it to be a violation of individual sexual autonomy.39
Although
the latter view is not without its detractors,40
sexual autonomy has
been explicitly stated as the guiding principle underpinning rape law in some
domestic jurisdictions as well as at the international level.41
The concept refers
to the ‘freedom to determine one’s own sexual experiences, to choose how
and with whom one expresses oneself sexually’.42
According to Schulhofer, it
has two dimensions: positive sexual autonomy which provides that every adult
should be free to decide for themselves what sort of sex to engage in; and
negative sexual autonomy which provides that individuals have the right to
35 E. Stanko, Intimate Intrusions: Women’s Experience of Male Violence (Oxford: Routledge Revivals,
2013) 83.
36 See, for example, M. Burman, ‘Evidencing sexual assault: Women in the witness box’ (2009) 56
Probation Journal 1; U. Orth, ‘Secondary Victimization of Crime Victims by Criminal Proceedings’
(2001) 15 Social Justice Research 313.
37 Office for National Statistics, Sexual offences in England and Wales: year ending March 2017
at https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/articles/sexual
offencesinenglandandwales/yearendingmarch2017 (last accessed 6 April 2019); Federal Bureau of
Investigation, Criminal Justice Information Service Division, 2017 Crime in the United States
Report at https://ucr.fbi.gov/crime-in-the-u.s/2017/crime-in-the-u.s.-2017 (last accessed 6
April 2019).
38 See, for example, C.L. Muehlenhard, S. Danoff-Burg and I.C. Powch, ‘Is rape sex or violence?
Conceptual issues and implications’ in D.M. Buss and N.M. Malamuth (eds), Sex, power, conflict:
Evolutionary and feminist perspectives (New York, NY: Oxford University Press 1996) 119-137.
39 See for example, Schulhofer, n 1 above and Munro, n 1 above.
40 See, for instance, N. Lacey, ‘Unspeakable Subjects, Impossible Rights: Sexuality, Integrity and
Criminal Law’ (1998) 11 Canadian Journal of Law and Jurisprudence 47; J.J. Fischel and H.R.
O’Connell, ‘Disabling Consent, or Reconstructing Sexual Autonomy’ (2015) 30 Columbia
Journal of Gender and Law 428.
41 See, for instance, domestic reform documents: United Kingdom Home Office, n 8 above;
Scottish Law Commission, Report on Rape and Other Sexual Offences Scot Law Com No 209
SE/2007/243 (December 2007); International cases: Prosecutor v Kunarac, Kovaˇc and Vukovi´c case
no IT-96-23, judgment of 22 February 2001 (ICTY); M.C. v Bulgaria n 2 above. International
bodies: United Nations, Department Economic and Social Affairs Division for the Advancement
of Women, Handbook for Legislation on Violence Against Women (ST/ESA/329) (New York, NY:
DAW/DESA, 2010) 26.
42 S. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of the Law (Cambridge,
Mass: Harvard University Press, 1998) 99.
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safeguard themselves against, and to exclude, any and all unwanted sex.43
Rape
law is tasked with striking the appropriate balance between the two facets,
respecting expressions of positive sexual autonomy and protecting individuals
from violations of their negative sexual autonomy when such violations are
sufficiently serious to warrant criminal intervention. In striking this balance,
attention must be paid to a third dimension of sexual autonomy, what could
be described as its contextual dimension. This dimension forces an analysis
of the broader circumstances under which a choice has been made to determine
whether the conditions of autonomous consent have been breached or a
criminal level of coercion has been at play.44
The recognition of a contextual dimension to sexual autonomy has the
potential to take account of what Kelly has described as the ‘continuum of coercion’
within which the crime of rape may occur.45
The continuum moves beyond
the ‘real-rape’ stereotype by encompassing a range of behaviours, beyond
physical force, that remove an individual’s ability to control intimate contact.46
Take for instance a domestically abusive relationship. While abuse in such a
relationship may involve physical violence, it may get to a point where physical
violence is no longer necessary to obtain sex. This is reflected in a study of
women who sought refuge following domestic abuse, where one participant
explained that after her husband violently bound her hands with a belt and
‘had his way with her’, she ‘never said “no” to him again’.47
Such relationships
may also involve more subtle forms of psychological abuse, such as those
recognised in the offence of coercive or controlling behaviour.48
This includes
acts of humiliation or intimidation used to harm, punish or frighten the victim,
or behaviour designed to make a person subordinate by, for instance, isolating
them from sources of support or depriving them of the means needed for
independence.49
In a relationship categorised by this type of abuse, the
perpetrator may have gained total control over the victim and the victim may
thus become compliant with their demands. As noted by one participant in
a study on survival techniques employed by women who had been abused
by their partners: ‘I just act however he wants me to act. I just go limp . . . I
just shut up’.50
Another response to abuse may be to become an active, rather
than passive, participant and even initiate sexual relations as a means to manage
and control risk.51
As noted by one participant in a study on sex and sexual
43 ibid.
44 Munro has previously described this dimension as ‘evaluative’ see Munro, n 6 above, 46. I would
like to thank the anonymous reviewer for their suggestions in terms of refining this terminology.
45 Kelly, n 6 above, 46.
46 J. McGregor ‘The Legal Heritage of Rape’ in J.M. Brown and S.L. Walklate, Handbook on Sexual
Violence (New York, NY: Routledge 2011) 70.
47 E. Stark, Coercive Control: How Men Entrap Women in Personal Life (Oxford: OUP, 2007) 243.
48 See for instance, The Council of Europe Convention on preventing and combating violence against
women and domestic violence (Istanbul Convention) Council of Europe Treaty Series No 210,
2011; Serious Crimes Act 2015, s 76.
49 V. Bettinson, ‘Coercive Control: In the Commission of Sexual Violence and Domestic Violence’
(2017) 14 Contemporary Issues in Law 85.
50 L. Lembert, ‘Women’s strategies for survival: Developing agency in abusive relationships’ (1996)
11 Journal of Family Violence 269, 281.
51 ibid.
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violation: ‘there was one particular afternoon, he came back in a foul mood,
and I knew he was gonna hit me, and I didn’t wanna get hit, um, so I just
jumped his bones instead’.52
While the responses of these women may seem puzzling when viewed
through a narrow lens of force and resistance, a context-sensitive approach to
rape, as required when viewed through the sexual autonomy lens set out above,
allows us to think differently about these scenarios. In particular, it encourages
us to engage with the background circumstances to determine whether, and
to what extent, the participant’s autonomous choices were constrained. At
the same time, however, this approach raises challenges in terms of ‘where to
draw the boundaries between bad, immoral and illegal sex’.53
These challenges
become more pronounced when considered alongside the important legal
principle of nullum crimen, nulla poena sina lege.54
This principle requires the
law to be defined in a way that is sufficiently clear and precise; while absolute
precision is not required, an individual must know from the wording of the
relevant provision and, if need be, with the aid of legal advice, what conduct
is prohibited.55
A fundamental question in this regard is how the contextual
and evaluative analysis required under the sexual autonomy approach can be
translated into concrete legal rules. In order to address this question, the next
section evaluates the two dominant models for defining rape as advocated in
human rights law and reflected in selected jurisdictions.
DEFINING RAPE: THE DEVELOPMENT OF TWO MODELS
In the 2003 case of M.C. v Bulgaria, the European Court of Human Rights
(ECtHR) was confronted with a case where a 14 year-old girl had alleged that
two men had raped her, but the Bulgarian authorities had terminated the
investigation due to there being insufficient proof to show that she had
been physically forced to have sex with the men.56
The applicant argued that
the domestic legal framework, which required proof of physical resistance by
the victim, and the practice of the Bulgarian authorities, constituted a violation
of Bulgaria’s positive obligations under the European Convention on Human
Rights (ECHR). Specifically, the victim alleged a breach of Article 3, the prohibition
of torture, and of Article 8, the right to respect for private and family
life. In relation to Article 3, the ECtHR explained that states must take measures
designed to ensure that individuals within their jurisdiction are not subjected to
52 T. Palmer, ‘Distinguishing Sex from Sexual Violation: Consent, Negotiation and Freedom to
Negotiate’ in A. Reed and M. Bohlander (eds), Consent: Domestic and Comparative Perspectives,
(London: Routledge, 2017) 19.
53 Munro, n 6 above, 70.
54 As enshrined in the Council of Europe’s European Convention for the Protection of Human
Rights and Fundamental Freedoms, Art 7 as amended by Protocols 11 and 14, 4 November
1950.
55 See for example, Cantoni v France (Application no 17862/91) 11 November 1996 at [29].
56 M.C. v Bulgaria n 2 above.
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ill-treatment, including ill-treatment administered by private individuals.57
Under
Article 8 it was noted that positive obligations may involve the adoption of
measures in the sphere of relations between individuals and that in the context of
rape, ‘where fundamental values and essential aspects of private life are at stake’,
this requires efficient criminal law provisions.58
As such it was asserted that states
are obliged ‘to enact criminal-law provisions effectively punishing rape and to
apply them in practice through effective investigation and prosecution’.59
While acknowledging that states enjoy a wide margin of appreciation, the
ECtHR explained that this is circumscribed by the ECHR provisions and, in
interpreting them, the ECtHR must have regard to ‘any evolving convergence’
between Contracting States as to the standards to be achieved.60
Thus, following
a survey of rape law in international and domestic law, the ECtHR endorsed the
principle of sexual autonomy and declared that the requirement for resistance
risks leaving certain types of rape unpunished and thus jeopardising the effective protection
of the individual’s sexual autonomy. In accordance with contemporary standards
and trends in that area, the member States’ positive obligations under Articles 3and
8 of the Convention must be seen as requiring the penalisation and effective prosecution
of any non-consensual sexual act, including in the absence of physical resistance
by the victim.61
The ECtHR concluded that there is a ‘universal trend towards regarding lack
of consent as the essential element of rape and sexual abuse’.62
Furthermore,
the ECtHR observed that, even where domestic frameworks refer to the use
of violence and threats, as opposed to the absence of consent, lack of consent
remains central in the application of the law.63
As such, the ECtHR sought to
provide fuller protection of sexual autonomy by placing an emphasis on lack
of consent and acknowledging that a limited focus on violence and resistance
is detrimental to the effective criminalisation and punishment of all forms of
rape.64
In the 2010 case of Vertido v The Philippines65
the Committee on the Elimination
on the Discrimination against Women (CEDAW) was faced with a
similar situation where the requirement for resistance had resurfaced and led to
an acquittal at the Regional Court of Davao City, Philippines. In this case, a
woman (the complainant) who worked for the Davao City Chamber of Commerce
and Industry (the Chamber) in Davao City, claimed to have been raped
by the former President of the Chamber (the accused). According to the facts,
as presented by the complainant, on the night of the alleged rape the accused
57 European Convention for the Protection of Human Rights and Fundamental Freedoms, n 54
above.
58 M.C. v Bulgaria n 2 above at [150].
59 ibid at [153].
60 ibid at [155].
61 ibid at [164]-[166] (emphasis added).
62 ibid at [163].
63 ibid at [159].
64 Echoed in Case of the Miguel Castro-Castro Prison v Peru Judgment of 25 November 2006 (Merits,
Reparations and Costs) (Inter-American Court of Human Rights) at [306].
65 Vertido n 3 above.
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had given the complainant a lift home; however, rather than taking her home
he brought her to a motel room. She hid in the bathroom of the motel and also
tried to escape, but the accused caught her, held her down and the complainant
alleged that he had raped her. Throughout the incident the complainant also
thought the accused had a gun. While she had begged him to stop and had
been unconscious through some of the encounter, the Regional Trial Court
Davao City acquitted the accused noting that
should the [complainant] really have fought off the accused when she had regained
consciousness and when he was raping her, the accused would have been unable
to proceed to the point of ejaculation, in particular bearing in mind that he was
already in his sixties.66
In reaffirming rape as a violation of women’s right to personal security and
bodily integrity, the CEDAW condemned the Davao City Court’s reliance on
gender-based myths and asserted that the Philippines must review its definition
of rape so as to place the lack of consent at its centre.67
The CEDAW further
stated that this may be achieved by enacting a definition that was framed
around either: the lack of ‘unequivocal and voluntary agreement’ on the
part of the complainant, taking into consideration whether there was proof
that the accused had taken steps to ascertain whether the complainant was
consenting; or a definition requiring that ‘the act take place in “coercive circumstances”,
including a broad range of circumstances’.68
The former model
will now be referred to as the consent-based model and the latter the coercionbased
model.
Both models have subsequently been placed on an equal footing and used
by the United Nations and non-governmental organisations, such as Equality
Now, as a benchmark against which to measure the effectiveness of domestic
legal frameworks on rape.69
Yet, the models provided by the CEDAW are
skeletal in nature and the precise way in which consent operates under both
models is unclear. For instance, the consent-based model as articulated by the
CEDAW represents a positive or active model of rape law. The emphasis is on
66 ibid at [2.9].
67 ibid at [8.9 (b)(ii)]. Article 266-A of the Revised Penal Code of the Philippines, as amended by
Republic Act No 8353 of 1997, reads ‘Rape: When and How Committed. Rape is committed: 1.
By a man who shall have carnal knowledge of a woman under any of the following circumstances:
(a) Through force, threat, or intimidation; (b) When the offended party is deprived of reason or
otherwise unconscious; (c) By means of fraudulent machination or grave abuse of authority; and
(d) When the offended party is under 12 years of age or is demented, even though none of the
circumstances mentioned above be present. 2. By any person who, under any of the circumstances
mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis
into another person’s mouth or anal orifice, or any instrument or object, into the genital or anal
orifice of another person.’
68 ibid.
69 United Nations, n 41 above; Equality Now, The Worlds Shame the Global Rape Epidemic How
Laws Around the World are Failing to Protect Women and Girls from Sexual Violence (New York,
NY, Nairobi, London: Equality Now, February 2017). See however, Campaign by Amnesty
International, ‘Rape is rampant in Europe. That’s why we need to talk about consent’
at https://www.amnesty.org/en/latest/campaigns/2018/11/rape-in-europe/ (last accessed 27
November 2018) and Amnesty International, n 4 above.
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establishing whether there was a lack of positive consent, as opposed to the
presence of dissent, and whether the accused actively sought positive consent.
Thus, going to both the mens rea and actus reus of the crime. Yet, there is no
indication of what precisely is meant by ‘unequivocal and voluntary agreement’.
The second model, the coercion-based model, is again less specific. It is framed
in negative terms, focusing on the circumstances under which the act must
occur, thus going to the actus reus. While the CEDAW has emphasised the
importance of consent, this element does not feature explicitly. In terms of
mens rea, it might be assumed that consent will play a role, but again this role is
not explicit. Nor is it clear whether knowledge of the coercive circumstances
under which the act takes place would be required as part of the mens rea of
this second model. Commentary on the definition of rape contained within
the Council of Europe Convention on Preventing and Combating Violence
Against Women and Domestic Violence may be of assistance here.70
While
the Convention defined rape with explicit reference to consent, its explanatory
note provided that where the crime is defined with reference to force, coercion
or other circumstances it must be interpreted in a way that encompasses the
notion of a lack of freely given consent.71
Such an interpretation could equally
apply to the CEDAW models. The CEDAW models thus provide an initial
framework with domestic jurisdictions in control of how they operationalise
either model. In light of this, the next section provides a fuller exploration of
these models in their domestic contexts.
‘Consent-based’ models
In England and Wales, section 1 of the Sexual Offences Act 2003 prohibits
sexual activity where that person does not consent and the perpetrator does
not reasonably believe that they consent.72
In line with the human rights
standards above, it further provides that in determining whether a belief is
reasonable consideration will be given to all of the circumstances including
any steps taken to ascertain consent.73
A definition of consent is provided in
section 74: ‘a person consents if he agrees by choice, and has the freedom and
capacity to make that choice’.74
This definition is further illuminated through
the inclusion of a number of rebuttable and conclusive presumptions in sections
75 and 76 respectively. Rebuttable presumptions include, for example, where
the defendant was using violence or threatened immediate violence against the
complainant or a third person.75
Where the prosecution proves one or more
of the instances set out in section 75, it will be presumed that the victim did
not consent and that the defendant knew that the victim did not consent. The
70 Council of Europe, Explanatory Report to the Council of Europe Convention on preventing and
combating violence against women and domestic violence Council of Europe Treaty Series No 210,
2012.
71 ibid at [193].
72 Sexual Offences Act 2003, s 1(1).
73 Sexual Offences Act 2003, s 1(2).
74 Sexual Offences Act 2003, s 74.
75 Sexual Offences Act 2003, s 75(2)(a).
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defence may, however, produce evidence to rebut the prosecution’s case. The
conclusive presumptions include where the defendant intentionally deceived
the complainant as to the nature or purpose of the relevant act.76
Once the
prosecution proves any of the circumstances under the conclusive presumptions,
it will have established that the victim did not consent and the perpetrator did
not reasonably believe the victim consented.
Beyond the circumstances listed in the presumptions, the Crown Court
Compendium provides a number of circumstances that may be used to prove
the absence of consent, such as, submission, fear without the use of force, or
oppression (eg, previous abuse).77
However, it will be for the jury to determine
whether a person is to be considered as having lacked the freedom to make
a choice. To assist the jury in this task the judge may offer tailored directions
in relation to the actus reus explaining, for example, the difference between
consent and mere submission:
A person consents to something if he/she agrees to it and is capable of making this
choice, and is free to do so. In some situations consent may be given enthusiastically,
but in other circumstances it is given with reluctance, but nevertheless it is still
consent. However, when a person is so overcome by fear that he/she lacks any
capacity either to give consent or to resist, that person does not consent but is
submitting to what takes place.78
A direction may also be framed in the following terms: ‘Where however a
person gives in to something against his/her free will, that is not consent but
submission’.79
The directions may also specify that it is not necessary for the
prosecution to prove that the complainant was subjected to threats or violence,
was overpowered, put up a struggle or told the defendant that that he/she did
not consent.80
In this regard, consent or the absence thereof can be understood
as a state of mind.81
While such directions are helpful and tackle problematic stereotypes, some
complicated jurisprudence has developed in cases where, as a result of previous
abuse or grooming, prima facie consent appears to have been given. The Court
of Appeal has had to revisit statements made by judges in the Crown Court
such as ‘just where the line is to be drawn between real consent and submission,
albeit willing submission, may not be easy to draw’82
and ‘submission of her free
choice to a demand made physically or in words, is not the same as consent . . .
On the other hand, an exercise of free choice, if it led to reluctant agreement,
that is not the same as submission’.83
Language of ‘free choice’ and ‘willingness’
is problematically used when describing both reluctant agreement, which
76 Sexual Offences Act 2003, s 76 (2)(a).
77 Judicial College, The Crown Court Compendium Part I: Jury and Trial Management and Summing
Up June 2018, ch 20, 16-17.
78 ibid, 20.
79 ibid, 19.
80 ibid.
81 Supports judicial statements made in R v Olubgoja [1982] QB 320, 5.
82 R v Kirk and another (2008) EWCA Crim 434 at [91]-[92] (emphasis added).
83 R v Jeffrey (2017) EWCA Crim 469 at [25]-[28] (emphasis added).
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would amount to consent, and submission, which would not. The potential
for confusion in relation to these terms is intensified when situated within
problematic socio-sexual scripts of seduction which view men, predominately,
as the sexual initiator or even ‘aggressor’ and place women in a passive or submissive
role.84
Indeed, following ten months of court observations in England
and Wales, Smith and Skinner note that defence barristers often ‘prioritised an
examination of how victim/survivors removed consent instead of how accused
men gained it’.85
Although the statutory requirement to consider steps taken by
the accused to ascertain consent when determining the mens rea of reasonable
belief in consent is supposed to redirect this focus, the Crown Court Compendium
provides that the defendant is not obliged to take steps.86
As such,
confusion over the relationship between consent, coercion and submission may
lead a jury to assume sexual interest or reasonable belief in consent, unless there
are clear signs of resistance.
In light of the challenges associated with establishing belief in consent, some
jurisdictions, including Canada, have adopted more affirmative conceptions of
consent. While consent is understood as a state of mind in relation to the actus
reus and defined similarly to England and Wales, as ‘voluntary agreement’ with
a number of consent negating circumstances included,87
the Canadian Supreme
Court has provided that
the mens rea of sexual assault is not only satisfied when it is shown that the accused
knew that the complainant was essentially saying ‘no’, but is also satisfied when
it is shown that the accused knew that the complainant was essentially not saying
‘yes’.88
This interpretation of the law is akin to what has been termed the ‘equality
approach’ in international human rights law which starts from the premise that
Women do not walk around in a state of constant consent to sexual activity
unless and until they say ‘no’, or offer resistance to anyone who targets them for
sexual activity. The right to physical and sexual autonomy means that they have to
affirmatively consent to sexual activity.89
The significance of this approach lies in the shift in focus: it requires consideration
of whether there were active signals of agreement rather than simply
looking for narrow and stereotypical indications of refusal. An affirmative
consent standard has also been incorporated into the defence of honest, but
mistaken, belief in consent, which is allowed in Canada but only where it has
84 See, for example, H. Frith, ‘Sexual scripts, sexual refusals and rape’ in M. Horvath and J. Brown
(eds), Rape: Challenging contemporary thinking (Cullompton: Willan Publishing 2009) 99.
85 O. Smith and T. Skinner, ‘How rape myths are used and challenged in rape and sexual assault
trials’ (2017) 26 Social and Legal Studies 441, 451.
86 Crown Court Compendium n 77 above, 16.
87 Canadian Criminal Code 1985, s 273.1 (1) and s 265(3).
88 R v Park (1995) 2 SCR 836 at [39].
89 Submission of Interights to the European Court of Human Rights in the case of M.C. v Bulgaria
n 2 above at [12].
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an ‘air of reality’; that is, it raises a real issue that could go before the jury.90
In
considering this defence, jurors are instructed to ask ‘whether (the defendant)
honestly believed that (the complainant) effectively said yes through his/her
words or actions’ and the defendants belief alone will not be enough where the
complainant ‘did not express that desire’.91
In line with legislation in England
and Wales, this belief will be assessed in light of whether the defendant took
reasonable steps in the circumstances known to them to ascertain consent.
In reflecting on these definitions from a sexual autonomy perspective, the
three dimensions set out in the previous section of this article are clearly identifiable.
First, the inclusion of a positive definition of consent recognises individuals
as moral agents and their right to control their sexual choices,92
thus reflecting
the positive dimension of sexual autonomy. Second, the negative aspect of sexual
autonomy is addressed through the prohibition of non-consensual contact
and the inclusion of a list of circumstances that undermine consent. Third, the
contextual dimension is built into the definitions through the use of concepts
such as freedom and voluntariness, as well as a consideration of the surrounding
circumstances. In England and Wales this dimension is acknowledged by directions
attempting to delineate the relationships between consent, which can be
given reluctantly, and submission. Such directions reflect an understanding that
there are pressures and constraints in everyday life that affect sexual decision
making, not all of which will be criminal.93
However, the framing of these directions
tend to invite a disproportionate focus on the actions or inactions of the
complainant, rather than on the behaviour of the defendant. In this regard, a lack
of resistance on the part of the complainant, for example, may then be used to
bolster claims of reasonable belief in consent. It is thus arguable that the adoption
of an active consent threshold in Canada moves standards forward by avoiding
situations where consent is implied through silence or lack of resistance. Although
not universally endorsed,94
there is a visible trend towards this approach
within other jurisdictions. For example, Iceland and Sweden have recently reformulated
their statutory definitions of consent so that it must be voluntarily
or willingly ‘expressed’95
and other jurisdictions are considering this reform.96
However, it is unclear whether the affirmative approach requires some manifestation
of consent under both the actus reus and the mens rea of the crime.97
90 R v Park n 88 above at [20].
91 National Judicial Institute, Model Jury Instructions: Offence 271 Sexual Offence at https://
www.nji-inm.ca/index.cfm/publications/model-jury-instructions/ (last visited 19 November
2018).
92 See, for instance, J. Gardner and S. Shute, ‘The Wrongness of Rape’ in J. Horder (ed), Oxford
Essays in Jurisprudence: Fourth Series (Oxford: OUP, 2000).
93 See, for example, Munro, n 1 and n 6 above and S. Anderson, ‘On Sexual Obligation and Sexual
Autonomy’ (2013) 28 Hypatia 122.
94 For an overview of arguments see J. Witmer-Rich, ‘Unpacking Affirmative Consent: Not as
Great as You Hope, Not as Bad as You Fear’ (2016) 49 Texas Tech Law Review 57.
95 See, for example, Criminal Code 1940 (Iceland), art 194 and The Swedish Penal Code (1962),
ch 6, s 1.
96 See, for example, New South Wales Law Reform Commission, Consent in Relation to Sexual
Offences Consultation Paper 21 (October 2018) and Law Reform Commission of Ireland,
Knowledge or Belief Concerning Consent in Rape Law LRC IP 15 (2018).
97 Compare the approach under Canadian law with, for instance, the Criminal Code Act 1924
(Tasmania), s 2A(2)(a) which states that a person does not freely agree to an act if they do not
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Further, while an affirmative consent standard might be beneficial to complainants
in situations where they freeze or flop, it could be problematic in
situations where the complainant is an active participant and thus appears to
have given prima facie consent. As noted earlier, sexual autonomy may be undermined
in various ways and there may be structural or interpersonal factors
which result in a complainant offering what could be described as ‘apparent’
consent.98
Although the requirement for consent to be free, voluntary or willingly
given remains a feature under affirmative standards, concern has been
raised in relation to the potential for fact finders to become distracted from this
‘real inquiry’ when asked to look for words or conduct signalling consent.99
Thus there is a danger that the same issues, in terms of an undue focus on the
complainant’s actions, may emerge. Consequently, some jurisdictions prefer a
‘circumstance’ or ‘coercion-based’ model of rape, which looks to the environment
within which sexual activity occurred.100
The following section will
explore these models in Michigan and Italy.
‘Coercion-based’ models
The 1974 Michigan Criminal Code (the Code) is one of the earliest examples
of efforts to de-prioritise consent within the definition of rape. The Code
reframed the offence of rape as criminal sexual conduct and defined it solely
with reference to a range of circumstances that, if one or more applied would
render sexual contact criminal.101
These circumstances include where the victim
is under 13; where the victim is under 16 and a relation of the defendant
or is under the care/authority of the defendant; where the accused was armed;
committing another felony; used force or coercion against the victim; threatens
the victim with physical force or retaliation against the victim or another
person or where the victim is mentally incapable, mentally incapacitated, or
physically helpless.102
The Code explains that force or coercion includes, but
is not limited to, instances where the defendant overcame the complainant by
the application of physical force or physical violence, or where the defendant
coerces the victim to submit by threatening the use of force or violence,103
thus
broadening the circumstances encapsulated within the definition. The Code’s
model jury instructions also note that force or coercion can involve the defendant
doing something to make the complainant reasonably afraid of present
say or do anything to communicate consent. In terms of the actus reus, consent thus moves from
being a state of mind to an act.
98 R v AC n 11 above.
99 See discussion in New South Wales Law Reform Commission, n 96 above, 42 citing A. Dyer,
Preliminary Submission PCO50 at [18], among others.
100 For an overview of some models in European Member States, see, European Institute for Gender
Equality, Analysis of the National Definitions of Rape October 2016.
101 Michigan Penal Code 1974, s 750.520b. The offence is also separated into ‘degrees’ depending
on the sexual act involved.
102 Michigan Penal Code, 1974 s 750.520b.
103 ibid, (1)(f) (i)-(iii).
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or future danger which suggests the potential to capture behaviour short of
physical violence.104
Although consent does not explicitly feature in the Code’s definition, discussion
around the role of consent as a defence has featured in case law. It has been
established that while consent cannot be raised as a defence in relation to sexual
activity with a 13 years old, for example, because such a person cannot consent
to sex,105
consent can be raised as a defence in relation to criminal sexual conduct
by force or coercion.106
The rationale for allowing the defence of consent
in the latter circumstance is due to the language of the statute which refers to
the defendant ‘overcoming’ or ‘coercing’ the victim which ‘implicitly required
the jury to find that the complainant did not consent to sexual intercourse
before it could find a defendant guilty’.107
As such, while the prosecution is
not required to produce evidence of non-consent, consent can constitute an
affirmative defence in some circumstances. Yet, the statute is completely silent
on consent, even as a defence. This gap in the law is addressed in the Code’s
model jury directions, where consent is defined in the following terms:
[a] person consents to a sexual act by agreeing to it freely and willingly, without
being forced or coerced. It is not necessary to show that the complainant resisted
the defendant to prove that this crime was committed. Nor is it necessary to show
that complainant did anything to lessen the danger to him/herself.108
These instructions further provide that, when deciding whether the complainant
consented, the jury should take into consideration: whether the complainant
was free to leave and not take part in the sexual act; whether the
defendant threatened present or future injury; used force, violence, or coercion;
displayed a weapon; or any other circumstance that might be relevant. If,
after this analysis, there is a reasonable doubt that the complainant did consent
then the defendant must be found not guilty.109
A similar coercion-based definition can be found in the Italian Penal Code.
Rape, or sexual violence as it is now termed, is defined in the Italian Code
with reference to the use of violence, threats, abuse of authority to coerce
another to commit or submit to sexual acts; or the abuse of another’s physical
or psychological inferiority or deception as to the identity of the perpetrator
to induce another to submit.110
Fenton has explained that violence can be
physiological and that the inclusion of abuse of authority within the Italian
definition is to protect those in ‘a weak position in the workplace and/or
the family’.111
The Italian definition also includes aggravating factors such
as the victim being a minor, the use of arms, alcohol or narcotics or the
104 Michigan Supreme Court, Michigan Model Criminal Jury Instructions, 20.15 (Use of
Force or Coercion) 2014 at https://courts.michigan.gov/Courts/MichiganSupremeCourt/
criminal-jury-instructions/Pages/default.aspx (last accessed 18 May 2019).
105 People v Waltonen (2006) 272 Mich App 678.
106 ibid.
107 People v Johnson (1993) 128 Mich App 618.
108 Michigan Model Criminal Jury Instructions n 104 above, 20.27 (Consent)
109 ibid.
110 Italian Penal Code 1930, Art 609bis.
111 Fenton, n 8 above 190.
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defendant pretending to be a public official, which would increase the sentence
of the defendant.112
While this definition makes no reference to consent, the
Italian Supreme Court has held that the material element of its legislation is
‘the committal of any sexual act without the consent of the partner’.113
In
elaborating upon the definition of rape and the issue of consent the Supreme
Court emphasised that proving resistance is not required in order to prove
violence, for example, as a victim may have ‘yielded to put an end to an
unbearable situation’.114
Nonetheless, Italian law still requires that the accused’s act was committed
intentionally and that the accused was aware that the complainant was not
consenting. Where the defendant is not aware, they cannot be found guilty.115
As such, they may be mistaken as to consent and, if so, the requirement is that
their mistake be honest as opposed to reasonable. Consequently, establishing
this awareness has posed difficulties where no explicit threats or violence have
been used or where there is no reaction by the complainant.116
The fact
that the statute provides no definition of what consent is raises the potential
for problematic myths to re-enter the courts evaluations at this point. For
instance, the Italian Supreme Court overturned a conviction on the basis that
the complainant’s hands had not been restrained while the accused performed
oral sex on her, that she had failed to manifest any objections during the
encounter and that the facts did not suggest that she was ‘at the mercy’ of the
accused.117
The coercion-based definitions outlined above speak very clearly to the
negative aspect of sexual autonomy by specifically setting out abusive contexts
that individuals should be protected against. The explicit inclusion of abuses of
authority within Italy’s definition is noteworthy in this regard. Other definitions
taking this approach have been applauded due to their potential to capture the
‘use of asymmetric power that one sort of agent may hold over another’.118
Attention to abuses of authority thus provide the opportunity for the courts
to more fully engage with the continuum of coercion outlined in the second
section of this article.
At first glance, it would seem that the positive dimension of sexual autonomy,
ie, the right of an individual to choose the type of sex they wish to engage in, is
omitted from these coercion-based definitions. This omission means that there
is no standard against which the perpetrator’s actions and the victim’s expression
of choice (if any) can be assessed. As such, violations of sexual autonomy may
only be recognised when they fall neatly into one of the explicitly accounted
for circumstances. However, on further inspection consent is implicit in both
these definitions, with Michigan even providing a definition of consent in its
model jury instructions, accompanied by a set of questions which reflect the
112 Italian Penal Code n 110 above.
113 Fenton, n 8 above 187, citing Cass III 3.12.1999 n 13829.
114 ibid, 189 citing Cass 16.11.1988, Mass.uff., 1988, m 179752.
115 ibid, 191.
116 See, for example, ibid and R.A. Van Cleave, ‘Rape and the Querela in Italy: False Protection of
Victim Agency’ (2007) 13 Michigan Journal of Gender and Law 273.
117 Van Cleave, ibid citing Corte app. di Roma, sez. tee, 12 July 2000.
118 S. Anderson, ‘Conceptualising Rape as Coerced Sex’ (2016) 127 Ethics 50, 58.
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contextual dimension of sexual autonomy. Yet there is an important difference
between the ways consent has been incorporated within the two definitions.
In Michigan consent is only relevant in so far as its presence provides a defence.
The assisting questions seem to narrowly interpret ‘freely and willingly’ by
asking about escape routes and the use of violence.119
The Supreme Court
in Italy, on the other hand, has made a clear statement in relation to the
scope of the definition and the prohibition of all non-consensual conduct. This
suggests that Italy’s definition, unlike Michigan’s, has application outside of the
circumstances already listed,120
and is more in keeping with the human rights
standards outlined earlier.
Nonetheless, Carline and Easteal have argued that definitions which make
no explicit mention of consent, or lack thereof, fail to reflect the ‘uniquely
degrading nature’ of non-consensual sexual activity and that it, in and of itself, is
a grave wrong that should be criminalised.121
The omission of explicit reference
to consent within definitions of rape is thus problematic in light of the principle
of nullum crimen, nulla poena sine lege, requiring the law to communicate, in a
sufficiently clear and precise way, the prohibited conduct.122
A counter to these
arguments is that the criminal nature of such conduct can become apparent,
and will be foreseeable, through for example, legal advice and reference to
case law if the courts have interpreted the definition in line with human rights
standards. However, there is a strong case for legislation on rape to include a
provision explicitly prohibiting all non-consensual activity given the willingness
of many, as evidenced through the EU survey and Italian case-law discussed
above, to excuse non-consensual activity if it is unaccompanied by violence or
resistance.123
Such a provision would reinforce the absence of consent as the
central element of rape, with force, coercion or other abusive circumstances as
only some of the means through which it may be evidenced.
REFLECTIONS AND MOVING FORWARD: INSIGHTS FROM US
MILITARY LAW
The ECtHR and the CEDAW have both set standards in relation to the definitional
parameters of the crime of rape with a view to centralising the element of
consent or lack thereof. Although variations of the consent and coercion-based
models suggested by the CEDAW exist in domestic jurisdictions, the consent
models, such as those in the England and Wales and Canada, are preferable.
Such models are preferred as they more adequately reflect rape as a violation of
119 See n 108 above.
120 Fenton, n 8 above, 187, for instance, notes developments in case law criminalising sexual
interactions that go beyond what was originally agreed or where one party withdraws consent
and the other continues with the sexual act.
121 A. Carline and P. Easteal, Shades of Grey – Domestic and Sexual Violence Against Women: Law
Reform and Society (Oxford: Routledge, 2014) 261. See also Amnesty International, notes 4 and
69 above.
122 See n 54 above.
123 European Commission, n 29 above; Van Cleave, n 117 above.
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sexual autonomy. In doing so, these models send a clear message about the prohibition
of all non-consensual sexual activity. However, an enduring challenge
under this model, for judges and juries in particular, is getting the appropriate
balance between the positive, negative and contextual aspects of sexual autonomy.
For instance, this article has highlighted ‘conceptual slippages’124
between
the concepts of consent, coercion and submission in the context of courts in
England and Wales. Although some of the judicial discussion around these
terms represents an attempt to avoid coercive overreach - by acknowledging
that not all choices to have sex are aligned with romanticised notions of consent
and desire - some of the language used confuses rather than clarifies the
relationship between these terms. The quote from the Jeffrey case, above, is
illustrative here: ‘submission of her free choice to a demand made physically or
in words, is not the same as consent . . . On the other hand, an exercise of free
choice, if it led to reluctant agreement, that is not the same as submission’.125
The use of the term ‘free choice’ in relation to both submission and reluctance
may prove particularly costly in cases of non-violent coercion that sit
outside what is commonly understood as ‘real-rape’126
and where the victim’s
reaction deviates from what is often viewed as ‘rational’.127
Such cases may
include incidents where, instead of screaming victims comply and instead of
resisting they initiate the sexual activity. As such, there is room to sharpen the
interpretative and analytical tools that judges deploy to navigate this contested,
and potentially damaging, space.
In this regard, it may be useful to extend our analysis beyond human rights
standards or comparisons between domestic jurisdictions, and explore whether
military law can provide additional insights. The military has a system of law
that is distinct from the law applicable to civilians in domestic jurisdictions, due
to the hierarchical nature of the military and the institutional emphasis on discipline,
obedience and loyalty.128
It is precisely because military law is designed
to operate in the context of this hierarchical structure that it can deepen our
analysis of the relationship between consent and coercion. Indeed, although the
military represents a very obvious, formal and all-encompassing power structure,
useful parallels can be made with the domestic scenarios outlined at the
beginning of this paper and, in particular, with the power wielded in abusive
interpersonal relationships categorised by physical, emotional or psychological
abuse.129
It is acknowledged that offences aimed at capturing sexual abuse within relationships
of power asymmetry or hierarchy can already be found in domestic
124 Language borrowed from Munro, n 6 above, 68.
125 R v Jeffrey (2017) EWCA Crim 469 at [25]-[28] (emphasis added).
126 Estrich, n 24 above.
127 Burgin, n 5 above 11.
128 See, L.B. Nichols, ‘The Justice of Military Justice’ (1971) 12 William & Mary Law Review 482,
484; W.T. Cox, ‘Consensual Sex Crimes in the Armed Forces: A Primer for the Uninformed’
(2007) 14 Duke Journal of Gender and the Law 291.
129 On the latter see M. Buchhandler-Raphae, ‘The Failure of Consent: Re-Conceptualizing Rape
as Sexual Abuse of Power’ (2011) 18 Michigan Journal of Gender and Law 148 and S. Leahy,
‘“No Means No”, But Where’s the Force? Addressing the Challenges of Formally Recognising
Non-Violent Sexual Coercion as a Serious Sexual Offence’ (2014) 78 The Journal of Criminal
Law 309.
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jurisdictions, such as abuse of trust offences or those relating to care workers in
England and Wales, or the offence of sexual exploitation in Canada.130
However,
these offences focus primarily on the existence of a relationship of trust
or care and are less concerned with striking the appropriate balance between
positive and negative sexual autonomy. This is reflected in the lack of attention
to the presence or absence of consent on the part of the complainant and the
omission of consent as a defence to these offences.131
In the military context, on
the other hand, it has been acknowledged that ‘the authority structure inherent
to a military organization may . . . strongly affect a complainant’s sense of what
options are realistically open to her and that when faced with a sexual advance
or sexual touching by a senior-ranking officer’.132
The context thus becomes
relevant to our considerations of whether a crime has occurred as opposed
to being determinative of a crime, speaking to the evaluative and contextual
dimension of sexual autonomy. In the US military context an interpretative
tool known as the doctrine of constructive force has been utilised by military
law-makers to take account of these power disparities and their potential impact
on consent. According to Murphy, this doctrine ‘accomplishes what other jurisdictions
have, for the most part, failed to accomplish: a principled approach
to criminalizing all sexual intercourse which is coercive and unwanted’.133
As
such, the doctrine of constructive force will be explored in more detail below
and consideration will be given to whether it has anything to offer its domestic
counterparts.
The application of the doctrine of constructive force
The doctrine of constructive force was originally developed by military appellate
courts as a means to overcome the problems associated with early definitions
of rape in the Manual for Courts-Martial, which required both proof of force
and of the absence of consent.134
These earlier definitions of rape required
some manifestation of resistance and inferred consent where resistance was ab-
sent.135
The doctrine of constructive force meant that the force involved in
penetration established both the elements of force and the absence of consent
130 Sexual Offences Act 2003, ss16-24 and ss 28-44; Canadian Criminal Code 1985, s 153(1).
131 Canadian Criminal Code 1985, s 150 1(1).
132 M. Deschamps, External Review Authority, External Review into Sexual Misconduct and
Sexual Harassment in the Canadian Armed Forces 27 March 27 2015 recommending additional
guidance on consent to address the potential impact of difference in rank and
chain of command on genuine consent, at www.forces.gc.ca/en/caf-community-supportservices/external-review-sexual-mh-2015/definitions.page
(last accessed 23 May 2018) (emphasis
added).
133 Murphy, n 15 above.
134 See United States v Kernan 11 CMR 314, 321 (CMA 1954). See also Manual for Courts-Martial
1984 ed, Part IV, 76, Art 120: ‘(a) Any person subject to this chapter who commits an act of
sexual intercourse with a female not his wife, by force and without her consent, is guilty of rape
and shall be punished by death or such other punishment as a court-martial may direct.’
135 See Manual for Courts-Martial ibid, 76: ‘If a woman in possession of her mental and physical
faculties fails to make her lack of consent reasonably manifest by taking such measures of
resistance as are called for by the circumstances, the inference may be drawn that she did
consent’.
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where a victim was found to have been incapable of resistance. Examples included
where the victim lacked the mental or physical faculties to resist, or
where resistance would have been futile due to a fear of death or great bodily
harm.136
In relation to the latter example, a ‘totality of the circumstances’137
approach is applied wherein ‘all the surrounding circumstances are to be considered
in determining whether a woman gave her consent, or whether she
failed or ceased to resist only because of a reasonable fear of death or grievous
bodily harm’.138
Interestingly, the doctrine of constructive force has been used in military
case law where the parties’ difference in rank or position in the chain of command
may have impacted the complainant’s ability to manifest resistance or
give genuine consent. The application of the doctrine in this context raises
interesting issues in relation to its scope, as well as the interplay between force,
consent and resistance. Take for instance the 1989 case of United States v Bradley,
which was heard by the US Court of Military Appeals, where the appellant
was the drill instructor of the victim’s husband.139
The appellant had arrived at
the victim’s home late at night when her husband was away on duty. He threatened
to imprison the victim’s husband for three years for violation of orders,
if she did not comply with his sexual demands. The Court of Military Appeals
found that although no threats of harm were made against the victim and no
physical force used, the ‘military relationship with its ancillary implications for
the dependant spouse created a unique situation of dominance and control
where explicit threats and display of force by the military superior were not
necessary’.140
Indeed, the Court stressed that the appellant had ‘exploited his
imposing status as drill instructor’ by ‘employing language indicating his power
and control’.141
Thus, it would seem that the Court was less concerned with fear
of bodily harm, which is one justification for the application of the constructive
force doctrine, than with the status of the drill instructor and his ability, which
he made clear to the victim, to follow through with his threat. As this case
shows, the doctrine of constructive force allows the court to bring to the fore
the pervasive power dynamics inherent in some environments or relationships
that can undermine not only the ability to consent but also the ability to refuse.
The US Court of Military Appeals ruled on the doctrine of constructive
force again in the 1992 case of United States v Clark142
(Clark) where the
appellant, Sergeant Clark, was the direct supervisor of the victim. The appellant
ordered the victim to accompany him to a storage shed to get supplies, the
victim entered the shed and the appellant closed the door behind them. The
appellant then ‘grabbed’ the victim and told her take down her trousers.143
The victim testified that she had been scared of the appellant and unbuttoned
only the top two buttons on her trousers in the hope that he would be unable
136 ibid, 76-77.
137 Described as such in United States v Clark 35 MJ 432, 435 (CMA 1992).
138 Manual for Courts-Martial n 134 above, 77.
139 United States v Bradley 28 MJ 197, 200 (CMA 1989).
140 ibid.
141 ibid.
142 United States v Clark n 137 above, 436.
143 ibid.
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to remove her trousers. However, this was not the case and he proceeded to
have intercourse with her. The victim did not actively resist, though her body
stiffened as a result of fear.
In response to the appellant’s claim that there was no force, the Court of
Military Appeals declared that a Sergeant
cannot create by his own actions an environment of isolation and fear and then
seek excusal from the crime of rape by claiming the absence of force . . . especially
where, as [in Clark], passive acquiescence is prompted by the unique situation of
dominance and control presented by appellant’s superior rank and position.144
However, the superior-subordinate relationship was just one factor in determining
force and lack of consent. As noted by the Court of Military Appeals in
this case, if superior rank alone was enough to establish constructive force, ‘all of
the significant number of sexual fraternization cases that reach this Court could
conceivably come here as rape convictions rather than fraternizations’.145
In
Clark, constructive force was demonstrated through various factors including,
for example, the accused ordering the victim to an isolated location which was
out of view of anyone else in the training unit. The need for something more
than a hierarchical relationship can be seen as an attempt to set the boundaries
of the constructive force doctrine in a way that is sensitive to both the positive
and negative aspects of sexual autonomy. Indeed, to indiscriminately label
sexual interactions between superior and subordinates as rape would be overly
paternalistic and it would threaten, rather than protect, autonomy.
The use of constructive force was again emphasised in the 1995 case of
United States v McCreary146
(McCreary), before the Air Force Court of Criminal
Appeals. Here a military training instructor approached a trainee for sex,
telling her that his superior condoned his sexual activity with trainees and that
he would make her repeat basic training if she refused. The trainee had sex
with the appellant on a number of occasions, the Court of Criminal Appeals
finding that this was due to the appellant’s threat in relation to the training,
to the appellant’s statements that he knew people in high places who would
pursue any trainees who crossed him throughout their careers, and because
the trainee felt she had no avenue of redress. In upholding the appellant’s
conviction, the Court of Appeal explained
This is a case about sexual activity between a female basic trainee and her male military
training instructor-a person cloaked by regulation, custom, and practice with
the authority over practically every aspect of her daily existence. More specifically,
he held the awesome (to a basic trainee) power of ‘recycling’ – of requiring the
trainee to repeat basic training. To anyone who has been through this or a similar
regimen, the terror inspired by the threat of having to go through it again is very
real.147
144 ibid, 436.
145 ibid.
146 United States v McCreary WL 77637, 1995.
147 ibid, 86.
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This statement reflects a ‘totality of circumstances’ approach which is required
under the doctrine of constructive force. As noted earlier, this approach requires
consideration of the surrounding circumstances to determine the victim’s
mindset. While this approach may open up the possibility of a negative focus
on the victim’s conduct, Murphy explains that the focus under this doctrine
‘is not grounded in “hostility” toward the victim, but rather it is based upon
an evidentiary analysis of those factors which make a particular act of intercourse
coercive and unwanted’.148
Such an evidentiary analysis is demonstrated
in McCreary through the Court’s emphasis on the trainee’s perception of the
power held by the training instructor and its potential effect on her. Also of
significance is the Court’s acknowledgement that the encounter was coercive
and oppressive not only because of potential physical harm ie, ‘recycling’, but
also because of the potential for career related harms and other harms associated
with daily life in the military.
So, key principles that can be derived from the case law are the need
to show the use of inequality, hierarchy or control to compel, rather than
their mere existence, and the need to engage in a thorough analysis of the
background circumstances. Tailored judicial instructions on constructive force
contained within the Military Judges Benchbook reiterate these principles.149
The instructions provide that where there is evidence that ‘the accused used
or abused his military position and/or rank and/or authority in order to coerce
and/or force the alleged victim to have sexual intercourse’,150
such evidence
forms part of the ‘surrounding circumstances you may consider in deciding
whether the victim consented’.151
The doctrine is thus of significant normative
and legal value as it acknowledges the way in which power, control and
dominance can be asserted by one party over another to compel compliance,
and that explicit threats and displays of force may be unnecessary in some
relationships/circumstances.
The doctrine was applied and broadened further in the 2005 case of United
States v Terry (Terry), decided by the US Court of Appeals for the Armed
Forces.152
The victim in this case was an Airman First Class (AIC) officer
and the appellant was a radiology technician working in the Hospital of the
Air Force Base. The appellant performed an ultrasound examination on the
victim and asked her to return the next day as a volunteer so he could take
ultrasound photos of the veins in her arms for his studies. When she returned
the next day the clinic was relatively deserted. The appellant raped the victim
in the examination room. In rejecting the appellant’s claim that a direction on
constructive force was not appropriate in this case Judge Fincher explained:
148 Murphy, n 15 above.
149 See Department of the Army Pamphlet 27-9, Military Judges Benchbook, September 2002,
430 (note 6: constructive force – use of military power). The same provision is contained in the
2010 and 2014 versions of the Benchbook.
150 ibid, 431 (emphasis added).
151 ibid.
152 United States v Keith M Terry ACM 35801 6 December 2005, 4. ‘NCO’ stands for Noncommissioned
Officer, an enlisted member of the armed forces holding a position of some
degree of authority.
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Consent, Coercion and Constructive Force
While the appellant did not have an improper NCO/trainee relationship with A1C
S, the totality of the circumstances reveals an environment that was just as coercive.
The appellant created an atmosphere of trust . . . He then systematically isolated
her in a small examination room where he used his expertise as an ultrasound
technician to dominate and control her.153
This case is therefore significant because it suggests that the doctrine of constructive
force is broader in scope than initially thought. While there was no
disparity in rank between the two parties in this case, the doctrine was applied
due to the coercive environment created by the appellant, the compelling effect
of which was held to be analogous to the abuse of power held by superiors.
The case therefore suggests that the doctrine may be applied not only in cases
with the potential for coercion due to a formal pre-existing relationship but
also when the perpetrator designs a relationship or atmosphere for the purpose
of control and coercion.
The way the doctrine of constructive force has been applied in the military
cases to identify coercive relationships or atmospheres; to take account of
the complainant’s perception of the power held by the accused; and the way
this coercion impacts the victim’s ability to consent is promising. In thinking
through the doctrine’s domestic relevance, the Terry and McCreary cases in
particular are interesting. Indeed, in domestic settings, rather than power being
formally invested in someone, as is often the case in the military, such power
can be strategically gained, as it was in Terry. This may be achieved over time
through tactics of coercive control as discussed earlier in this article. The abuser
may, as was the case in McCreary for example, take action that negatively affects
the daily life of the complainant. While the actions taken in McCreary were
military specific, an abuser in domestic settings might isolate the complainant,
control their movements, their finances and/or their interactions with their
children. In promoting a ‘totality of circumstances’ approach, the doctrine of
constructive force may help to capture these informal coercive dynamics and
how they are perceived by the complainant. However, the narrow threshold
upon which the doctrine of constructive force is based – fear of physical injury
and resistance being futile –has re-emerged in more recent case law.
In the 2008 case of United States v Bright154
(Bright), which is strikingly similar
on the facts to the McCreary case above, a drill sergeant had his conviction for
the rape of a female trainee overturned on appeal. In this case, the parties met
at various hotels for sex, at the defendant’s request. The complainant explained
that on some occasions, ‘I just kind of laid there and didn’t really do much of
anything’, but at other times, the defendant was explicitly abusive, sodomising
her while she tried to resist.155
The accused did not appeal his conviction for
the latter crimes because the complainant had verbally or physically demonstrated
her lack of consent. Regarding the other instances of sexual activity,
the Court of Appeal noted that ‘any similar manifestations of lack of consent’
were missing, and it emphasised that the complainant had verbally agreed to
153 ibid.
154 United States v Bright 66 MJ 359, 362-366 (CCAF 2008).
155 ibid, 6.
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meet the defendant and independently travelled to the hotels.156
The Court
of Appeals went on to consider whether resistance would have been futile but
found that the record ‘could not support a finding that resistance was overcome
by threats of death or grievous bodily injury’.157
This is despite evidence of
the drill sergeant asserting that he had control over her on numerous occasions
and threatening to put her on ‘lock down’ for eight months. Moreover, there
was evidence before the Court of Appeals that the complainant was afraid of
the sergeant due to his position, physical size and his previous statements to her
indicating his capacity for violence; and that the drill sergeant had subjected
the whole platoon to rigorous physical training, and what could be described
as punishment after she previously rejected his advances, with the Court of Appeal
acknowledging that the drill sergeants conduct amounted to an ‘egregious
abuse of his position’.158
Nonetheless, we should not lose sight of the doctrine’s significance, as developed
in the earlier military cases, and the wider potential it offers in relation
to the impact of coercive relationships on sexual autonomy and expressions
of consent or lack thereof. So, the question now is, how can the pre-Bright
conception of this doctrine aid the approaches in domestic jurisdictions explored
above? As discussed, both consent and coercion-based approaches to
rape acknowledge that consent must be free and voluntary. It could therefore
be argued that there is already scope to factor in the impact of power, control
and dominance within these existing models. However, it is suggested that the
constructive force doctrine has the potential to reframe these current inquiries
to better reflect the nature and impact of the perpetrator’s wrongful act. In
particular, the doctrine may help to direct the court or the jury’s attention to
the actions of the perpetrator while avoiding the conceptual slippages which
result from focusing on the actions or inactions of the complainant. This will
be demonstrated by revisiting the Bright case and considering how the reasoning
and analysis might differ under each approach. The Bright case is used as
it draws out some of the issues identified earlier in relation to how dominant
perceptions of what amounts to ‘real-rape’ and how a ‘real’ victim should react
problematically impact the application of both the consent-based and coercion
based models.
In considering the coercion-based approach first, the reasoning under this
model might mirror the Bright decision. For instance, the scenario outlined
in Bright may fall under the ‘use of force or coercion’ category of sexual
misconduct under the Michigan Criminal Code. Although the definition of
force or coercion references the application or threat of physical force it may
be argued that Bright’s previous statements placed the complainant in fear of
future danger as is provided under the jury instructions. If the prosecution
were successful at this, the defence may argue that the complainant consented;
drawing in particular on the fact that she was ‘free to leave and not take part
in the sexual act’.159
Under Italian law it is likely that, even though abuse of
156 ibid, 15.
157 ibid, 18
158 ibid, 16-20.
159 See n 108 above.
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power is part of the definition and flagged up with the acknowledgement that
a person may ‘yield’,160
the lack of physical or situational restraint placed on
the victim during the encounter, and her failure to express her lack of consent
under these circumstances, may again be used to argue that the defendant could
not have known that the victim was not consenting.
In turning to the consent-based models, the prosecution would not be
restricted to fitting the Bright scenario within one of the specified presumptions
or consent-negating circumstances. It could instead base its case on a lack of
consent on the part of the complainant. The ability of the prosecution to
do this is one of the reasons why this article has favoured legal models that
explicitly address the issue of consent, or lack thereof, in their definitions.
The prosecution would likely advance evidence relating to the statements and
threats used by Bright to show that the victim could not freely and willingly
agree to the encounter and that Bright could not have reasonably believed
that she consented. On the above facts, this would likely be a case where an
instruction on the difference between consent and submission (as provided for
in the England and Wales context) would be helpful, with the latter being
‘Where . . . a person gives in to something against his/her free will’.161
In
England and Wales, the judge may also explain that while consent may be
given ‘enthusiastically . . . in other circumstances it is given with reluctance,
but nevertheless it is still consent’.162
This will be a matter for the jury to
consider and it would depend on its willingness to view the defendant’s conduct
as encroaching on the complainant’s free will, or whether, while it is something
that the complainant does not really want to do, she reluctantly agrees. In terms
of the defendant’s belief in consent the jury would be asked to consider whether
that belief was reasonable. In doing so it would be asked to consider whether an
ordinary reasonable person in the same circumstances as the defendant would
have believed the complainant was consenting.163
Under Canadian law, the jury may be asked to consider ‘whether (the
defendant) honestly believed that (the complainant) effectively said yes through
his/her words or actions’.164
Although there is evidence that the complainant
just ‘lay there’ through some of the encounters, her actions in speaking with
the defendant, planning their encounters and turning up may be used to show
she was exercising ‘free will’ or, if it is determined that she was not exercising
free will, it may nonetheless be argued that the defendant could not have been
aware of this, thus his belief in consent was reasonable.
It is true that the above simply sets out potential arguments under each
approach and that it cannot be said for certain what a particular judge or jury
would decide. It may be that they would find the defendant’s conduct criminally
wrongful because the evidence demonstrates that coercion was used, that the
complainant did not consent and that the defendant would have been aware
of this. It is equally true that, due to the perennial problem of agreeing on the
160 See n 114 above.
161 See n 79 above.
162 See n 78 above.
163 ibid, 18.
164 See n 91 above.
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exact level of oppression or coercion that must be exerted over another person
to warrant criminal sanction, the judge or jury may find, as the US Military
Court of Appeals did, that although the defendant’s conduct was wrong and
immoral it is not criminal. It is not suggested here that the application of an
earlier conception of the doctrine of constructive force would eliminate these
difficulties. Rather, it is suggested that some of the vocabulary from these earlier
cases can progressively reshape inquiries in a way that allows us to engage more
effectively with the context in which sexual interactions take place.
For instance, in terms of the actus reus the focus on whether the complainant
submitted, was overcome, reluctantly agreed, or expressed her lack of consent
directs our evaluative lens on the complainant. The risk is of obscuring and
failing to make explicit the perpetrator’s role. Earlier, pre-Bright, conceptions
of the constructive force doctrine, on the other hand, can address this by
asking whether the ‘accused used or abused his military position or authority in
order to coerce and/or force the alleged victim to have sexual intercourse’.165
Alternatively, the question could be whether the accused used or abused his
military position or authority in order to restrict the complainant’s freedom
to make a choice. The framing of these questions removes the temptation to
focus on dissecting the complainant’s behaviour or reaction, and now more
explicitly forces an interrogation of the accused’s behaviour and its impact on
the complainant’s free will. In terms of mens rea, instead of asking how the
circumstances or the complainant’s words or conduct may have led the accused
to reasonably believe in consent, the central question would be whether the
accused was aware of, or contributed to, an environment of coercion or, in
language adopted from the cases of Bradley and Clark, ‘a unique situation of
dominance and control’166
in which the complainant’s free will was restricted
and whether, in light of that, it was reasonable for him to believe in consent.
As this article has asserted a preference for domestic consent-based models,
it is worth now considering what potential these insights from the doctrine
of constructive force have in terms of improving/reframing such models. This
potential can be demonstrated by returning to the domestic abuse example
given at the beginning of this article, where a woman anticipates physical abuse
from her partner and initiates sexual intercourse as a protection strategy. Under
the current legal frameworks in force in both England and Wales and Canada,
it would be easy to lose sight of the backdrop of abuse within which this
sexual encounter took place when addressing questions around consent. This
is because the law in both England and Wales and Canada invite oversimplified
evaluations of the encounter. For example, if this case were to come before
a jury under the law in England and Wales, the judge may give the jury a
direction on fear, ie stating that ‘when a person is so overcome by fear that
he/she lacks any capacity either to give consent or to resist, that person does
not consent but is submitting to what takes place’.167
However, the initiation
of sexual contact by the complainant challenges traditional understandings of
submission as expressed in this type of instruction. Indeed, it is scenarios such as
165 See n 150 above (emphasis added).
166 See notes 140 and 144 above.
167 See n 78 above.
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this, where an individual may appear to be consenting, that led to problematic
language such as ‘willing submission’ being used by courts in England and
Wales.168
Similarly, under Canadian law, when determining the accused’s belief
in consent, consideration would have to be given to whether the complainants
words or actions effectively led the accused to believe she said yes. Against this
background, the constructive force doctrine offers valuable insights for both
jurisdictions.
Drawing from the constructive force doctrine and amending the language
slightly to reflect civilian contexts, the process of evaluating consent in this
example could benefit from questions such as ‘Did the accused create an
environment of coercion or a situation of dominance and control within which
the complainant’s freedom to make a choice was restricted?’ and ‘Was the
accused aware of this environment and its potential impact on the complainant’s
free will?’. It is important to remember that these questions would not replace
the elements of rape as provided under the consent models, rather they would
replace current analytical tools, such as those embodied in jury instructions
discussed above. Therefore, while current laws are framed to encourage a
contextual approach, this is too often used to bolster the defendant’s claims of
belief in consent on the basis of the complainant’s actions or inactions rather
than exploring how the context and the accused’s use of that context (which
may already exist or was strategically created) affected the complainant’s ability
to control intimate contact.
CONCLUSION
The question of what ‘counts’ as rape and how it should be legally defined
evokes controversy and contestation.169
However, if rape is to be understood
as a violation of sexual autonomy, with the protection of sexual choice
at the centre, then it is essential that this is reflected in the definition. Although
this may be achieved by centralising the concept of consent within definitions
of rape, the protection of sexual autonomy requires an appreciation of the
range of behaviours, beyond physical force, that may undermine autonomy
and thus constitute rape. In this regard, it is essential that definitions of rape are
designed in a way that facilitates engagement with what Munro has termed the
‘profoundly messy contexts’ within which sexual decision-making occurs.170
This article set out to consider whether the consent-based and coercion-based
models for defining rape that exist in domestic jurisdictions are capable of
such a contextual approach. Drawing from definitions in England and Wales
and Canada as examples of consent-based models, and Michigan and Italy
as examples of coercion-based models, it found that a contextual element is
built into both approaches through, for example, their emphasis on sexual
168 R v Kirk and another n 82 above.
169 B.M. McKimmie, B.M. Masser, and R. Bongiorno, ‘What Counts as Rape? The Effect of
Offense Prototypes, Victim Stereotypes, and Participant Gender on How the Complainant and
Defendant are Perceived’ (2014) 29 Journal of Interpersonal Violence 2273.
170 Munro, n 6 above, 46.
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encounters being ‘freely’, ‘willingly’ or ‘voluntarily’ agreed to.171
However,
the models that make this aspect explicitly clear through definitional inclusion,
such as those in England and Wales and Canada, are to be preferred as they
have the potential to capture more violations of sexual autonomy than those
that only implicitly recognise this feature.
While attention to context gives the appearance of progress, a core difficulty
is ensuring that the analysis remains focused on the key questions of whether
there was the opportunity for the complainant to exercise free choice and
the defendant’s awareness or role in this. Indeed, this article has demonstrated
that the questions used to frame the analysis of context often result in the
victim being ‘put on trial’172
with the potential for problematic perceptions
surrounding who may legitimately be labelled a ‘real’ victim dominating the
discussion.173
In this regard, it is important to acknowledge that the law may
sometimes act as a source of harm rather than redress. This reality has led Smart
to warn that ‘we should not make the mistake that law can provide the solution
to the oppression that it celebrates and sustains’.174
At the same time, however,
victims continue to engage with the criminal justice process.175
Thus, rather
than abandoning the criminal law, efforts can be made to ‘improve the legal
story of rape’ and the treatment of the complainant.176
This article took up this
task by drawing from the doctrine of constructive force which has been utilised
in the US military context and arguing that it has the potential to progressively
reframe our contextual and evaluative inquires. This doctrine directs attention
to the perpetrator’s use, abuse or creation of a coercive environment and it
thus asks questions that require judges and juries to think outside of narrow
paradigms, rather than reinforce them.
171 See, for example, Sexual Offences Act 2003, s 74; Canadian Criminal Code, s 273.1 (1);
Michigan Jury Instructions, n 108 above.
172 M. Maynard, Violence Against Women’ in D. Richardson, V. Robinson and J. Campling,
Introducing Women’s Studies: Feminist Theory and Practice (London: Macmillan, 1993) 116.
173 Estrich, n 24 above.
174 C. Smart, Feminism and the Power of Law (London: Routledge, 1989) 49.
175 See n 37 above.
176 W. Larcombe, ‘Falling Rape Conviction Rates: (Some) Feminist Aims and Measures for Rape
Law’ (2011) 19 Feminist Legal Studies 27, 34.
C 2019 The Author. The Modern Law Review C 2019 The Modern Law Review Limited.
(2019) 00(0) MLR 1–29 29