Some notes on consent and sexual offences (Part Two)

(Part One)

(Trigger Warning: This post discusses consent to sexual relations, and describes various scenarios in which consent may or may not be present.)

This is a follow-up to my earlier post on consent to sexual relations. The earlier post dealt with the ontology of consent, i.e. what is consent, really? There are two basic accounts: (i) attitudinalism; and (ii) performativism. According to the first, consent is constituted by some set of mental attitudes, i.e. whether or not A consents to sexual activity with B depends on what A thinks, feels, desires, or hopes. According to the second, consent is constituted by some set of (publicly assessable) actions, i.e. whether or not A consents to sexual activity with B depends on whether A performed some consent-signalling activities. Although there is much to be said for the performative account — particularly in the legal context — I suggested at the end of part one that the attitudinal account is to be preferred, at least when it comes to understanding what is harmful about non-consensual sexual activity.

Today, I want to take up a related topic, one that is particularly pressing in the legal context. Consider the following hypothetical (but all-too real) scenario:

Transgender Sex: A woman and a transgender man meet in a wine bar. They flirt with each other. The man returns with the woman to her apartment where mutually satisfying sexual intercourse takes place. Subsequently, the woman discovers the man is transgender and claims to feel violated. She reports the matter to the police and requests that he be charged with rape on the basis of his failure to disclose his gender history.

For a rape charge to work in such a case, the sexual activity would have to have been non-consensual, but prima facie, and ceteris paribus (and whatever other Latin hand-waiving equivocation you want to add) consent looks to have been present in this scenario. So here’s the question: is consent present or did the failure to disclose gender history negative consent? If so, why? If not, why not?

Now, as it happens, I’ve stolen this example from my colleague Alex Sharpe, who has written eloquently and, in my opinion, persuasively about the problems with the gender history disclosure requirement in UK law. I would encourage you to read what she has to say. I use the example here because it is a rather exquisite provocation of the issue du jour: what conditions negative consent?

What follows is little more than a series of notes on this issue, based on my reading of Douglas Husak’s article “The Complete Guide to Consent to Sexual Relations”, which is itself a review of Alan Wertheimer’s book. As Husak notes, there are three kinds of condition that are thought to negative consent: (a) deception; (b) coercion; and (c) intoxication. I’ll briefly discuss all three in what follows.


1. Consent and Deception
If I get you to perform an activity on the basis of a false representation, then it seems fair to say that any consent you render to that activity is morally questionable. For example, if I get you to sign a contract for membership to my club, but neglect to inform you that membership requires the forfeiture of all your worldly possessions, we would rightly call into question your consent to become a member. That much seems unobjectionable.

But aren’t some false representations acceptable? For instance, Bob may induce Kate to have sexual relations with him on the basis that he is a “great lover”, but when it turns out that he is far from that, does it necessarily follow that Kate’s consent is negatived?

What we are dealing with here are fraudulent or deceptive inducements to engage in some kind of activity. To resolve the ethical questions associated with such inducements, theorists typically divide them into two categories:

Fraud in factum: B induces A to consent to some activity (X), which in fact turns out to be a different kind of activity (Y).

Fraud in the inducement: B induces A to consent to some activity (X), which turns out to be activity X, but procures A’s consent by deception.

An example of the first kind of fraud would be:

Gynecologist: A doctor informs his patient that, as part of a medical examination, he will need to insert a medical device into her vagina. She agrees to this. Instead, he inserts his penis.

Clearly, consent is negatived in such a case. The situation might be different if the activity types were very, very similar, but when they are as different as this, consent is surely absent. Indeed, I find it hard to imagine any scenario in which consent to a non-sexual activity could be transferred over to a sexual one. Thus, it would seem like the moral issues involved in the first category of deceptiveness are relatively uncontroversial.

The second category of deceptiveness is a different story:

Affection: Bob tells Kate that he loves her. As a result, she agrees to engage in sexual intercourse with him. It turns out that Bob was lying, and that he did so to get Kate to go to bed with him.

In this case, and the “great lover” example given earlier, Kate knows exactly what type of activity she is consenting to, but her consent is procured by a misrepresentation or lie. Is this sufficient to negative consent? Legally speaking, the Sexual Offences Act 2003 says that impersonating someone known to the victim will negative consent, but that’s just the law. Morally speaking, the issue is quite fraught. This is particularly so when the fraudulent inducement arises not so much from what was said, but from what was unsaid. Hence, in the opening example of Transgender Sex, the woman’s objection arose from the man’s failure to disclose gender history, not from any explicit fraud.

In his book, Wertheimer suggests that there is no satisfactory theory about which kinds of fraudulent inducement will negative consent. Everything turns on which facts are emphasised and how the scenarios are described. Indeed, there are many cases in which what originally looks like fraud in the inducement can be turned into fraud in factum. Take the Affection case from above. You could say that Kate only consented to , whereas what happened was . Is this re-description fair? Does it change the moral character of the cases? Arguably it does.

One thing that can be said with some surety is that perceived deceptiveness that is based on prejudice will not be deemed sufficient to negative consent. Thus, for example, it is unlikely that you could claim a lack of consent if you engaged in sexual intercourse with a black man, but only because he was presenting or “passing” as white. The same is true for other racial or ethnic qualities (and for gender history, if we follow Alex Sharpe’s arguments). Considerations of equality and social justice trump considerations of fraudulent inducement, at least in these kinds of cases.


2. Coercion and Consent
Suppose I am a poor, down-on-my luck student and I come to you looking for money. I plead my case, ask you to be sympathetic, and you agree to lend me some cash. Sounds okay, doesn’t it? Now suppose that instead of pleading my case and calling upon your sympathies, I hold you at gunpoint and demand that you hand over the cash on pain of losing your life. Surely that’s morally objectionable? I cannot claim, in good faith, that you freely and willingly handed over the money.

What’s happening in the second case is known as coercion, and it is generally agreed that coercion negatives consent. Examples of coercive sexual activities abound. For instance, Bob could hold Kate at gunpoint and force her to perform oral sex. That would obviously negative consent. Bob could also threaten to kill some third party unless Kate has sexual intercourse with him. That would negative consent. Or Bob could threaten to fire Kate unless she had sexual intercourse with him. Would this negative consent too?

Wertheimer is one of the leading scholars of coercion, and he defines it in (roughly) the following manner:

Coercion: A coerces B if (i) A makes a credible threat to (ii) make B worse off than they already are (c) unless B adopts a particular course of action that B would not otherwise have undertaken.

This definition of coercion captures the paradigmatic instances of the phenomenon, and it’s probably true that the satisfaction of those three conditions will negative consent. But there are some problems, as Husak points out.

First, there can be cases in which the credible threat is trivial or silly. For example, A could credibly threaten to kill B’s goldfish if B does not have sex with him. But would that really be sufficient to negative consent? Second, there can be cases in which the credible threat is to harm the coercer not the coercee. For example, A could threaten to kill himself if B did not have sex with him. Arguably, a threat of that sort would be sufficient to negative consent. Finally, the threats could come from an outside party. For example, unbeknownst to A, C could threaten to kill B, unless B has sex with A. That’s obviously coercion, but would it make A guilty of rape? The theoretical problem could be resolved here by saying that although B did not consent to the sex (i.e. C’s coercion was sufficient to negative consent), A has a defence of reasonable belief.

In addition to this, there can be cases in which there is no explicit threat to make B worse off, but rather a general atmosphere of menace and fear. In the English case of Olugboja, for example, the victim had sex with the defendant after being driven to and dragged into his house. The case was a landmark insofar as it decided that mere submission to sexual intercourse was not sufficient for consent, and this seems morally correct to me, but as far as I can make out from the case report, there was never any explicit threat to make the victim worse off (apart from one, arguably trivial, threat not to drive her home). Rather, there was physical coercion and an atmosphere of menace. These things obviously negative consent, but they do not sit neatly into the definition of coercion that was given above.


3. Intoxication and Consent
A lack of capacity is obviously an issue when it comes to consent. And intoxication obviously impairs our capacities. But does intoxication negative consent? This is a hugely significant issue since many rape cases involve mildly-to-severely intoxicated victims (and defendants).

One approach to the issue is to be risk-aversive. In other words, to say that it is not worth running the risk of the harms associated with non-consensual sex; that those risks are always heightened when intoxication is involved; and so the (social) rule should be that intoxication precludes effective consent (unless perhaps the intoxication it is very minimal). This could be modified by a rule specifying that if consent is procured prior to intoxication (“I agree now to have sex with you when later I will be intoxicated”) it is acceptable. But even that would be problematic.

Wertheimer challenges this risk-aversive approach with a contractarian one. Basically, he applies the Rawlsian question about schemes of distribution to the rules about consent. Specifically, he asks: what rules on intoxicated consent would be chosen by women ex ante (i.e. before the event)? He suggests that they would choose a rule in which consent is possible up to the point of moderate intoxication. Why? Because that may be crucial to what some regard as a desirable sexual and social experience.
Husak finds this approach refreshing because it pays attention to the different “strategies” women may use to procure sex, and thereby serves as a corrective to the dominant view that it is men who employ the devious, Machiavellian strategies when procuring sex.

But I’m not sure what to make of this. My only hope is to revisit Wertheimer’s approach to intoxication more fully at a later date. Maybe then I’ll have a clearer sense of the argument he is presenting.