The determination of consent requires consideration of botht the internal and external features of the choice situation. Failures of consent occur because of external features: the person was coerced or defrauded into the choice by the person 'asking' for consent. The background circumstances themselves also can be coercive if the person is desperate and the proposer uses that desperation to their advantage. Alternatively, there can be failures of consent because of internal constraints on the consentor, that she was drunk, on drugs, insane, too young, and so on. Focusing merely on the words that were said or not said as evidence means that one can fail to pick out the background conditions within which the individual is making the 'choice,' or fail to notice crucial features about the consentor's ability to give consent, or fail to account for the actions or words of the proposer and their effects on the consent-giver. Consent is vitiated by external factors such as coercion and fraud and also by internal factors that incapacitate a person. The fact that a victim was drunk or high on drugs should naturally lead to the conclusion that she was not consenting, as she was incapable of voluntary consent. Showing that the woman was incapacitated should establish the element of the actus reus 'without consent.' Consent is the vehicle through which individuals autonomously direct major parts of their lives; poor choices, or choices with fail to conform to a person's good, often result when choosing without one's full faculties. Hence consent granted at those times should not be held as legitimate. It should be noted that normally we do not let others exploit and incapacitated person and take advantage of their condition.
Joan McGregor, Is it rape?, 2005
More to come next week...
1 comment:
Thank you Deborah, this is a great summary of the argument. Looking forward to the more next week :-)
It frustrates me no end that consent seems to be the default position, and I realise that this is because of the tension between the presumption of innocence for the accused and the therefore presumption of falsehood on the part of the victim. There must be a better way to do this when it comes to crimes of rape and sexual abuse. We seem to be able to do it with other forms of assault.
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