Consent in rape law - A comparison of three models

Abstract: Rape violates international human rights law; global and regional human rights mechanisms clearly establish this. There is an obligation on states to investigate, prosecute and punish instances of rape. When it comes to defining what rape is, which acts states are obliged to prosecute the international mechanisms provide little guidance though. The European Court of Human Rights provides the most instructive answer in this respect when it in the case of M.C. v. Bulgaria describes consent as the dividing line between legitimate and illegitimate behaviour and declares that states are obliged to penalise any nonconsensual sexual act. Prohibiting nonconsensual sexual acts is an imprecise obligation though as consent itself is not a well-defined term of which courts, legal commentators and people in general have a shared common understanding. Furthermore, the term consent is used to mean different things. Even courts use the term consent both to signify an empirical fact – someone chooses to engage in sexual acts regardless of the reasons for doing so – and as a demarcation between legal sex and illegal rape. Furthermore, there is disagreement about whether consent (in the meaning empirical fact) is a mental state a person experiences or an expression a person performs. Applying consent as either mental state or expression has implications for the two opposing interests rape legislation seeks to reconcile. Protection of negative sexual autonomy – the right not to engage in or be subjected to sexual acts – which all modern rape legislation aims to protect, and upholding the legal rights of the accused of which the presumption of innocence is the most important. Applying consent as an expression of verbal rejection has the virtue of holding those who act in contradiction to another’s expressed choice liable. Applying consent as an affirmative expression has the added advantage of protecting passive victims. Those who are passive out of fear, to avoid injury, or due to intoxication are protected. Applying consent as a mental state appears deficient in comparison as it seems a man may proceed in the face of negative signals in the hope that his victim chooses sex in her mind (under conditions acceptable within the jurisdiction), and if she does, escape liability. However, rules prohibiting attempts mean that a perpetrator is liable for subjecting his victim to sexual acts he infers or ought to infer she does not choose. If in fact the victim chooses sex in mind (under conditions acceptable within the jurisdiction), the perpetrator is liable for the lesser crime of attempted rape. If the victim does not choose sex in her mind or if she chooses sex under conditions not acceptable within the jurisdiction, the perpetrator is liable for rape. Yet even though applying consent as expression or mental state has somewhat different consequences for the protection of negative sexual autonomy, what is more important for said protection is determining which factors invalidate consent. This is of equal importance for the different views of consent. A robust and extensive understanding of the factors that vitiate consent ensures good protection of negative sexual autonomy as it explains when a yes, the absence of a no or a mental state of choosing sex is not a defence against rape liability. Applying consent as either mental state or expression has implications for the legal rights of the accused as well. Applying consent as an expression appears preferable; as long as a man adheres to a woman’s words and behaviour he does not incur rape liability (naturally provided the situation does not involve another vitiating circumstance such as fraud). The attitudinal view appears problematic since what is decisive is the victim’s mental state, into which the defendant has no access. Yet, rules on mens rea mean that a man is safe to trust a woman’s words and signals under an attitudinal view as well. As long as the accused has no reason to assume lack of consent, he is not liable. The difference in consequences for the accused between the two views lies in the fact that the attitudinal view provides a finer instrument for grading liability. The expressive view only considers the defendant’s blameworthiness; when the defendant acts in opposition to his victim’s expressed choice, he is liable for rape. Applying consent as a mental state considers the defendant’s blameworthiness as well but also considers the resulting harm. When the defendant acts in opposition to his victim’s expressed choice but his victim chooses sex in her mind under conditions acceptable within the jurisdiction, he is only liable for attempted rape.