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Post by markdsouza on Oct 14, 2013 13:53:45 GMT
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Post by markdsouza on Oct 14, 2013 14:53:33 GMT
Let me start by stating that in my opinion, if the essence of rape is the lack of consent (rather than the use of force or compulsion), then this was rape. Since the prostitute demanded payment beforehand, her consent was conditional upon the prior receipt of payment. In other words, valid payment was a condition precedent for consent, and since the condition precedent failed, the consent never arose. Linekar involved a condition subsequent, since the prostitute there had agreed to accept payment after sex.
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Post by Jamie-lee on Oct 16, 2013 12:31:24 GMT
This is interesting - not only do we have the issue outline about the conditions on which consent was placed (i.e. I am consenting on the premise I will get paid) but we also have to address what the alleged offender reasonably beleived about the consent (although I am not clear on the law on consent Australia). To me, we have to establish the intentions of the alleged offender - did he know the prositute would not consent without payment? This seems obvious. But I think it is interesting in cases where money (exchange) occurs, the consent is premised on the 'promise' of money. How can you base consent on a promise something will be given in return? Determining the offenders intentions here was perhaps one of deceit rather than of rape?
Feel free to shoot me down!
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Post by markdsouza on Oct 17, 2013 11:50:45 GMT
I think that we agree on most points - my position is based on the understanding that here V did not consent based on the promise of something happening in the future. Instead she consented on the condition that something would happen before the consent came into effect - i.e. that she would be paid in advance. When, as a matter of fact, that condition precedent was not satisfied, her consent never came into effect. So when D proceeded as if she had consented, D acted without her consent. You'd still have to check whether D knew that the precondition had not been satisfied. So imagine these facts: X gives D the envelope saying that it contains 500 AUD. D believes X and has not checked the contents. V consents to have sex with D if D pays her 500 AUD in advance, and D duly hands over the envelope, which V checks only after having sex with D. Here, I'd say that V hadn't consented, but that D would still be exonerated on the basis of his lack of mens rea as to the absence of V's consent.
But even on the original facts of the case, you're right in saying that whether D hands over an envelope stuffed with playing cards in advance, or postpones (with permission) payment to after sex, never intending to pay, D is basically being deceitful. Yet in the former case, on my argument, D would commit rape, and in the latter case, D would (in principle) commit only a property offence. Perhaps this suggests a problem with tying the offence of rape so closely to consent - maybe some element of compulsion of will should complement consent in our understanding of the wrongness of rape.
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Post by mattgibson on Oct 18, 2013 13:09:47 GMT
I take the distinction that is been drawn between the Australian case and Linekar. I agree that in the latter, where there is a condition to be fulfilled post-sex (ie payment is expected after the act), there is no rape. D has sex with V knowing that V is consenting to the act of penetration at the time on its own. Indeed, V was always going to consent as there is nothing about D (yet) that was preventing V from forming consent. The conditions for consent are in place at the time of sex. Denying that V consented in such a situation would surely narrow our understanding of consent too far. As many commentators say, the essence of D's act seems to be dishonesty (rather than something related to sex). It is a pecuniary loss by V: she was willing to provide sex but expected payment later.
The compulsion of will idea is interesting in relation to the former case (assuming I am on the right lines). Here, there is something else (the condition precedent) acting on V's consent (or lack, thereof) prior to and at the time of the act. Nevertheless, I'm not sure how far it gets us. It depends on what we think is at the core of the offence of rape. We could ask, similar to Linekar, did V have a sufficient understanding of D's act (sexual penetration, for sexual gratification purposes) at the time? Arguably, this may be yes on a narrow view (and a narrow view may be preferable if we are not to expand the offence to take into account situations where V only has sex with D on a condition precedent such as D is not married, D is single etc.). If that is the case, and consent is present, D's state of mine (eg. exploitation/knowing the condition is not met) may recede in relevance (unless you prefer the idea that rape can/should be expanded to be consider D treating V as a sex object, ie the commodification of sex and a lack of consent by V).
Having said all that, these are just some quick thoughts. Apologies if it's a bit incoherent ...
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Post by markdsouza on Oct 19, 2013 16:44:16 GMT
...We could ask, similar to Linekar, did V have a sufficient understanding of D's act (sexual penetration, for sexual gratification purposes) at the time? Arguably, this may be yes on a narrow view (and a narrow view may be preferable if we are not to expand the offence to take into account situations where V only has sex with D on a condition precedent such as D is not married, D is single etc.). If that is the case, and consent is present, D's state of mine (eg. exploitation/knowing the condition is not met) may recede in relevance (unless you prefer the idea that rape can/should be expanded to be consider D treating V as a sex object, ie the commodification of sex and a lack of consent by V)... It's true that V understood exactly what she was consenting to - so this is not a case in which V's seeming consent to something was actually illusory because V didn't understand the nature of what she was 'consenting' to - this is not an R v. Williams type case where V consented to a therapy to improve her voice, and not to sex. But even when V understands what she's consenting to, she is well within her rights to impose pre-conditions on her consent - that flows from her autonomy itself. So consider Assange's case - V said to Assange, "I consent to sex on the understanding that you'll wear a condom at all times." Assange allegedly removed the condom surreptitiously. The courts said that had this happened in England and Wales, this would be rape. The basis is the same - V can condition her consent as she wishes in the exercise of her autonomy. If she imposes conditions precedent or concurrent, then the consent itself fails with the failure of the condition. If she imposes a condition subsequent, then the consent doesn't fail with the failure of the condition, but (subject to res extra commerciam) V has a cause of action arising out of the failure of the condition. I'd even go so far as to say that it shouldn't even matter that we find the conditions that V imposes deplorable - "I'll consent only if D is not a Muslim" (which actually happened in the Israeli case of Kashur), or "only if D is not an immigrant". It is V's sexual autonomy, and she can choose to dispose of it, or not to dispose of it, as she wishes.Now one might say that this leads us to treat sex as a commodity - in the same way as V can say, "I'll lend you my car if you agree to mow the lawn first", she can also say "I'll consent to sex, if you'll mow the lawn first" or "if you're single" and so on. That's correct, but the same objection also applies to the application of consent in other fields. When V says to a D, "I'll let you perform this appendectomy if you're a qualified doctor", she's doing exactly the same thing. Is she commodifying her body then? One response might be to say that the surgery if for V's benefit rather than for D's gratification, but what about facts such as those that arose in R v. Tabassum, where the supposed medical examination was not for the benefit of V? Had D been a qualified doctor, would we still be uneasy at V being able to condition her consent to an intimate examination in this fashion? Was V commodifying herself?That said, I accept that the commodification objection itself is a valid policy objection. I think that it arises because the same concept - consent - applies across so many different domains of life. I also share the general unease at labelling cases in which V is deceived about D's marital or relationship status as 'rape'. But the way to translate that unease into a better law might not be to stipulate that we must like the conditions that V imposes upon her consent for us to recognise them as operative - that would be to erode personal autonomy too much. There's no problem with accepting that V is wronged when D lies about having mowed the lawn, or being single, and so on. But I can see that it may be possible to make a good argument against labelling that wrong as 'rape'. Hence, it might be worth exploring whether as a normative concept, 'rape' should not be tied solely to consent as it is usually done in liberal orthodoxy. Perhaps we should re-define rape such that when V does exercise her autonomy to consent, she can only be raped if that exercise of autonomy was exercised under some sort of compulsion. If it was exercised under trickery, then maybe we should call the offence something other than rape. I've seen an unpolished argument for something like this made by an Israeli academic called Amit Pundik, and though I wasn't convinced by his argument in the draft form that it was then, I wasn't convinced that he was wrong either. |
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Post by markdsouza on Mar 16, 2014 14:30:48 GMT
The recent Supreme Court of Canada case of R v. Hutchinson, 2014 SCC 19 (available at: scc-csc.lexum.com/scc-csc/scc-csc/en/item/13511/index.do) is an interesting new case on this point. Here V consented to sex with D if D used a condom. D 'sabotaged' the condom by poking holes in it. V got pregnant and D was charged with sexual assault (there's no offence that carries the label of 'rape' in Canada, but this is the equivalent). D was convicted, and the Supreme Court upheld the conviction. Presumably, if instead of getting pregnant, V had gotten HIV from D, D would have been convicted not just of inflicting GBH on V, but also of sexually assaulting (i.e. raping) V. This essentially confirms the English court's approach in the Assange case. Gratifyingly, it is also in line with an argument I made in my Law & Philosophy paper on consent. As an aside, I know that many Oxbridge/London academics got into an involved debate about whether making someone pregnant could amount to inflicting GBH on them. Any opinions on that proposition? |
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Post by mattgibson on Mar 17, 2014 12:42:20 GMT
These debates are particularly interesting from the normative perspective as to what the limits of concepts like rape and harm are. The reaches of ss. 76 and 74 SOA are much debated and I sympathise with the unease (and policy objections) at labelling as 'rape' incidences where V is tricked/deceived into having sex where the conditions imposed are 'spurious' (deceived about D's marital status etc.). Perhaps it should not even be labelled rape where V's bodily integrity is affected, eg. V stipulates condom use and D tricks V resulting in pregnancy/HIV, or where D deceives V about their HIV+ status and transmits the disease. It may be that those incidences, ie where V is tricked, are better treated as a separate (new) offence, with the wrongness of rape concerned with some element of compulsion/duress exercised on V by D or others.
I need to look at debates surrounding ss. 76 and 74 more closely, but (as a starting point) a recent article in the Crim LR alludes to these discussions in the context of the McNally case in looking at whether consent really was vitiated in that case. See A. Sharpe, 'Criminalising sexual intimacy: transgender defendants and the legal construction of non-consent' [2014] Crim LR 207.
On the face of it, if HIV transmission can lead to a s. 20 OAPA charge and a rape charge where there is deception as to HIV+ status, it may well be the case that pregnancy and deception as to condom use could (analagously) be found by the courts to be rape and s. 20 OAPA. There is clearly overlap here and an issue of how best for the criminal law to capture the wrong and the harm committed.
Incidentally, Simester and Sullivan point to incidences of a woman claiming to be on the pill and having sex with a man where they deceive the man about being on the pill. Would/should this be an offence? If so how/what?
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Post by markdsouza on Mar 17, 2014 23:12:03 GMT
Thanks for the pointer to the Sharpe article. It's really interesting, and I agree with most of the principled points made. I'm not commenting on whether D's dressing and behaving to conform to a gender stereotype should be taken evidence of as D 'presenting herself' (deceptively) as being of that gender, or merely D (non-deceitfully) behaving according to D's self-identity. That argument seems plausible, but I don't know nearly enough about the issues to have any useful opinion on it. One argument at the end though overstates the acceptable role of public policy in shaping the law's recognition of the contours set by a person in granting consent (I think). I'm referring to the part of the article where Sharpe gives the example of the anti-semitic woman who makes clear to a Jewish man that she would not consent to sexual intercourse with Jewish men. Sharpe says that if the Jewish man does not disclose his Jewish identity and sexual intercourse follows this should not be rape because of the public policy in countering racism. Surely that can't be right! It's one thing to decry a racist, but leaning on a racist by using the non-recognition of the conditions she sets for her consent to sex as a tool is surely too heavy-handed. If V says to D that she will only have sex with him if he is not a Jew, we can condemn V for having that attitude, but if D, knowing this, does not disclose his Jewish faith and has sex with her, I'd say that this isn't passively allowing V to be guided by her assumptions, but an active deception, wherein D deliberately acts outside the boundaries of V's explicitly defined consent. That is rape, and the public policy against racism ought not to change that fact.
Separately, I tend to agree with Matt that there's at least a good case for reserving the label of rape for offences involving non-consent + the use or threat of physical violence or coercion. Tricking someone into having sex is wrong, but it's not quite the same wrong as rape. As I said before, I've seen such an argument made before (in a draft article that I looked at).
In a separate discussion of these same issues, Andrew Simester asked whether if pregnancy was to be treated as amounting to GBH/wounding for the purposes of childbirth (as Matt also suggests), D would be convicted of unlawful act manslaughter in the event that V died in childbirth. Probably yes, and if that seems intuitively wrong, maybe that's a problem with the unlawful act manslaughter rule rather than with the notion that pregnancy might be GBH. It would be interesting to hear what women have to say about this.
As for deception by a woman about being on the pill... wow, that is really tough! I guess if we think that Assange and Hutchinson are correct to say that deception about the use of a (working) condom is rape (or the equivalent) - at least under the current definitions thereof - then we'd have to bite the bullet. I do think that the Assange and Hutchinson outcomes are correct, so I'd have to say that if V (the man) tells D (the woman) that he will only have sex with her if she is on the pill, and if D lies that she is and has sex with V, then D is guilty of a sexual offence as well - probably sexual assault under s3 of the SOA. The man's consent was explicitly made subject to a condition precedent and concurrent - that D be on the pill. Since that condition was not satisfied, the foetal consent was stillborn - there never was actual consent. D knew this, and so D has mens rea as to the absence of V's consent. That said, I'm willing to be convinced otherwise...
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Post by markdsouza on Sept 29, 2014 12:32:28 GMT
An interesting new development in California: www.theguardian.com/world/2014/sep/29/yes-means-yes-california-sexual-consentAny thoughts? I don't know much about the technical details of the erstwhile California law on consent, but assuming it was in line with the England and Wales conception of consent, I'm not entirely this would change anything other than the rhetoric. But maybe I've overlooked something? |
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Post by mattgibson on Sept 29, 2014 13:06:14 GMT
I've had a quick skim-read of this, but my initial impressions are that it's a bit silly for a number of reasons.
Politically, it seems empty-gestured. Something headline-grabbing which won't be enforceable. Legally, it could present even more evidential problems than currently exist. Eg. how to tell what is 'an affirmative, conscious and voluntary agreement to engage in sexual activity'? What credible evidence will there be? What form should it take? Is this a falsely constructed notion of most sexual relations? What about where V appears to act affirmatively because s/he is under (some form of unilateral) pressure which D is unaware of, or mistaken about an element of the sex (assuming cases of mistake should affect consent to sex, which I'd argue isn't rape anyway...perhaps a difference offence). Ethically, it seems dubious (and paternalistic) too: surely someone who is drunk is still potentially capable of consenting to sex (according to the Bill, drunkenness will seemingly establish a presumption against consent)?
Surely, the whole point about consent is that it is more nuanced than this? Just some initial (probably rash) observations.
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Post by markdsouza on Sept 30, 2014 12:44:13 GMT
I'm sure the soundbyte on the effect of intoxication on consent is exaggerated - I would be very surprised if it legislates a standard (?) any diferent from that articulated in Bree. On the larger point, I agree that this is a pretty empty gesture. We seem to be getting a lot of that from Anglo-American legislatures these days...
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Post by markdsouza on Sept 29, 2015 10:26:09 GMT
Recent confusions on the law of consent in England and Wales:
In Watson v R [2015] EWCA Crim 559.
D fathered a daughter when he was a teenager, and gave it up for adoption. 35 years later, the daughter sought out and made contact with D, and soon thereafter left her husband and children to live with her biological father, and began what appeared to all intents and purposes to be an enthusiastic consensual sexual relationship with D. Evidence adduced included repeated explicit text messages sent by V to D reassuring him that their elationship was not wrong. When V’s friends and husband gathered what was going on they persuaded V that it was wrong, and got the police involved. At trial D was convicted of two counts of rape and two counts of assault by penetration, and he pleaded guilty to three counts of sex with an adult relative.
On appeal the CA set aside the rape and assault by penetration convictions (understandable in view of the text messages and similar evidence) but went on seemingly to directly contradict the rule that we had just gotten used to in Olugboja (without ever mentioning that case):
"34. ...the sentence of which complaint was made was the last thing said about consent by the judge to the jury. They did not receive the directions in writing. The dichotomy set up by the judge (free consent/submitting to a demand that she felt unable to resist) did not accurately summarise what had gone before and does not reflect the law. It is possible for a person to submit to a demand which he or she feels unable to resist, but without lacking the capacity or freedom to make a choice. That is an example of reluctant consent."
It's difficult, nay impossible, to reconcile this with the ruling in Olugboja or with common sense. The only saving grace I can offer Matt, who will have to teach this topic, is that in para 31, the CA made it clear that whatever followed was merely obiter:
"31. It is strictly unnecessary to consider the remaining grounds although we do so briefly."
Not briefly enough by half.
Comments?
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Post by mattgibson on Sept 30, 2015 14:43:25 GMT
I've had a quick look through Watson. The section on consent ([31] - [37]) is woefully confused and confusing, de-clarifying the already muddy conceptual boundary in Olugboja (and referenced in subsequent case law) between reluctant acquiescence (valid consent ... just) and submission (no consent).
That distinction has always been criticised for not being terribly helpful on its own (although Olugboja is clear that all surrounding circumstances should be taken into account). For the time being, I think I am going to continue to teach Olugboja (and its interpretation through later cases (both pre- and post-SOA 2003)) as good law, notwithstanding Watson which I will try and explain in a number of ways. Eg. by saying that the CA simply confuses the terminology (perhaps, in fact, they just mean 'acquiescence' (on Olugboja terms) when they talk of 'submission'/'being unable to resist') - in which case the decision can make sense; or by saying they conflate submission (non-consent - on Olugboja terms) with valid consent - in which case it is bad law and shouldn't/won't be followed; or by saying that, either way, we can ignore the court's confusing comments because they are obiter dicta (ie Mark's suggestion).
What a mess!
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