2.24 The model of consent which we proposed was an 'active' (or positive) type as opposed to a passive model. On an active understanding of consent to sexual conduct the basic principle is that both participants in sexual activity should respect each other's sexual autonomy and each is equally active in reaching agreement on their sexual relations. In determining whether agreement has been given to a particular sexual act a court or jury should look at the whole background circumstances. The primary question should be 'what did all the parties do to ensure that they participated in a fully consensual act?' The focus of enquiry would be not only on the behaviour of the victim but on the actions of the accused in the process of reaching agreement on consent.
This is going to be fun, except for the person in the dock. I'm not at all sure that law commissions should be laying down "basic principles for sexual activity". It could be argued by a good lawyer that in the vast majority of sexual encounters, whether in the nightclub toilets or the deep peace of the mamarital bed, one or other of the participants (and guess which one it'll be ?) have fallen short in their duty of ensuring thay they're participating in a fully consenusal act. It'll turn out that we ARE all rapists.
"And what did you do to ensure that you participated in a fully consensual act ?"
"Er ... I put my hand on her thigh ..."
It's a bit late to digest the whole thing - maybe it'll be better in toto, so to speak. But ...
In the Discussion Paper we emphasised that in the context of sexual activity consent functions in quite a different way from agreement (consensus in idem) in the law of contract.
Er ... just a bit. You could say that. Would you care to explain why ?
It is of the very essence of the law of contract that once a contract is made a party is held bound by it, whatever his or her subsequent wishes. In contrast, in the present context it would be inappropriate to prohibit the withdrawal of consent to sexual activity.
Ah, that's the only difference, is it ?
But it's this that will (if enforced - always a big if) destroy Scottish squelching.
2.59 We recommend that:
5. There should be a non-exhaustive statutory list of factual situations which define when a person has not consented to sexual activity. The situations should include the following:
(a) where the person had taken or been given alcohol or other substances and as a result lacked the capacity to consent at the time of expressing or indicating consent unless consent had earlier been given to engaging in the activity in that condition;
(b) where the person was unconscious or asleep and had not earlier given consent to sexual activity in these circumstances;
(c) where the person agreed or submitted to the act because he or she was subject to violence, or the threat of violence, against him or her, or against another person;
(d) where the person agreed or submitted to the act because at the time of the act he or she was unlawfully detained by the accused;
(e) where the person agreed or submitted to the act because he or she was deceived by the accused about the nature or purpose of the activity;
(f) where the person agreed to the act because the accused impersonated someone who was known to the person;
(g) where the only expression of agreement to the act was made by someone other than the person.
(Draft Bill, section 10)
I've got no great worries about b to g, although I see section e) would probably have put the remarkable Mr Fadi Sbano, who persuaded a somewhat unworldly lady that sexual intercourse constituted a form of medical treatment, away. He was acquitted of rape at Swansea Crown Court. (UPDATE - the judge stopped the trial.)
But section a !
"lacked the capacity to consent at the time of expressing or indicating consent"
So if you're smashed enough and say yes your partner is still a rapist ! This is going to be bad news. Why is a woman's free - if drunken - consent not valid, while an equally intoxicated male partner's consent is a criminal act ? Are not both parties equally "victims" here, the man being similarly incapable of consent ? Be interesting to see how these prosecutions pan out in court.
“However we dress, wherever we go, yes means no and no means no!”
UPDATE - I'm presuming the "If at first you don't succeed, buy her another beer" T-shirt started all this.