Consent: Defining Reasonable Belief
Lack of consent is one of the key defining features in the difference between sexual violence and sexual activity. In English law, more emphasis is put on the perpetrator’s “reasonable belief” of consent than the victim’s actions, yet our society seems to centre its discussion around the exact opposite.
For the purpose of this piece, the perpetrator will be referred to as male and the victim of referred to as female. This reflects the gendered nature of sexual violence, where an overwhelming majority of victims are women (approximately 90% of those who have experienced rape or attempted rape are female).
The Sexual Offences Act 2003 states the following:
Article 1 “Rape”
(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
It also goes on to clarify:
Article 74 “Consent”
For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.
The law insists that the definition of rape is not just lack of consent, but that the male perpetrator has continued the offence in the knowledge that there was no consent involved. In a patriarchal society such as this (and evidence from numbers of female MPs and journalists, to the disproportionate effects of welfare reforms on women confirm this to be the case, despite technical legal parity), the emphasis is constantly put on the female victim to prove that she didn’t provide that consent.
To look at court proceedings, one would almost be forgiven for thinking it was the victim on trial. What was she wearing? What exactly did she say? Did she fight back? Did she try to escape? If she stayed submissive, how was the perpetrator to know that there was lack of consent?
In many ways, it often appears as if victim’s rights have not progressed since the 1700s. Back then, women had to prove that they were physically resisting and fully capable of making the decision to say no. How is that any different from the current system that suggests the victim must provide enough evidence so that her assailant did not “reasonably believe” that she had consented?
This practise completely ignores the reality of the “fight or flight” response. Many women, faced with serious assault, will become “compliant” or “shut down” in an attempt to preserve themselves. In these cases, how could they prove to a jury that they did not assent; it would be very easy for the perpetrator to claim that the absence of resistance constituted consent.
Along a similar vein, the expectation of women’s compliance and subservience to men – in itself one of the three key factors in gender oppression – then becomes a minefield of grey areas as far as the legal system is concerned, rather than the clear cut situation that it should be.
And so the current teaching revolves around “enthusiastic yes” as opposed to an “absence of no”. If young people are educated from an early age, it will become the societal norm not to ask. “How did you say no?”, but to ask the perpetrator, “How did she say yes?” instead. This shifts the focus of investigation subtly, so that there is equal responsibility to share assent, discuss physicality in relationships and look for the signs, but it also makes it the perpetrator’s responsibility to find that consent rather than the victim’s to give it (or withhold it) in a way that a jury would believe.
For this approach to work, children need to be exposed to these discussions as early as possible. There are fantastic resources available to schools, such as massage sessions where pupils are encouraged to ask each other’s permission before touching them, and are free and able to refuse physical contact. Additionally, the recent Disney film, “Frozen” has a wonderful scene near the end, where Kristoff asks permission to kiss Anna, which can springboard into a fantastic session on the importance of consent.
In order to truly provide “reasonable belief”, society needs to challenge how it ascertains this and challenge starts with discussion and re-education.