What Is Consent?


Our understanding of the gravity of sexual violation has undergone a revolution over the last 20 years. At the level of international law, the criminal tribunals for Rwanda and the former Yugoslavia have held that in certain circumstances, rape can be understood as a form of torture, a grave breach of the laws of war, a tool of genocide, as a form of enslavement.

A striking feature of the work of these international tribunals in regard to sexual crimes is their focus on the dignity and the integrity of the person — and their insistence that the law must protect all persons equally against any impairment of human dignity or any invasion of personal integrity.

This insistence on the equal protection of dignity and integrity has yet to be fully reflected in popular culture, law or public policy in regard to sexual violation, in the time we call peace. To do so would require putting the value of personal autonomy at the centre of our understanding of sexual violation.

Autonomy is about leading one’s own life. It is about governing oneself. It is about not being the puppet or the slave of the choices and desires of others. And it is about respecting others as they seek to make their own path in life. In Immanuel Kant’s terms, respect for autonomy is about treating another person as an end in herself, not as a means or an object to one’s own ends.

Modern societies provide strict guarantees to protect our autonomy in relation to property interests. But even now there is an asymmetry with the degree of protection afforded to our sexual interests, which cut so much closer to our sense of integrity and identity. In sexual relations we are much more vulnerable than when we are in buying a car or a house, say. Vulnerability is in fact the particular grace of intimacy. If there is to be justice in our sexual relations, that vulnerability deserves to be respected, not exploited. And to do that, autonomy needs to be placed at the very centre of how we understand and practice our sexual lives.

So how should sexual autonomy be respected and protected? What would it mean to think and talk about rape in accordance with this fundamental principle of the autonomy of the human person? What would criminal and civil law look like if the wrong of rape were seen to lie in its violation of the autonomy of the person?

For one thing, we would no longer refer to claims of sexual assault as "trivial". Claims of sexual assault may be true or false, but they are not trivial.

Another shift would take place in the evaluation of such claims. That is, just as resistance by a target of sexual crime casts doubt on a claim of consent by the accused, so too does passivity or ambivalence. An important way of upholding sexual autonomy is to inquire as to the communication of consent. This means that as well asking a woman who claims to have been sexually assaulted whether she consented, other questions also need to be asked. When I talk about the questions we might ask here, I mean the questions law might ask, but also the questions we ask in our minds as we think about and try to make sense of sexual justice.

We might, and often do, ask of the man whom she accuses whether he honestly believed that his alleged victim was consenting. Better still, we might ask him what efforts he made to ascertain mutuality of desire — that is, what efforts he made to ensure that there was "an affirmative indication of actual willingness" on the part of the person with whom he had sex. It should go without saying that grabbing a woman’s breasts doesn’t count as such an effort.

In the 1997 Canadian case of Esau, Justice l’Heureux-Dubé spelled out the appropriate "test" in thinking through sexual assault cases, in terms of the mutual communication of actual consent. In the 1995 case of Park, Justice l’Heureux-Dubé noted the "terrible costs" of not using that test. She added, "In order to give full and meaningful effect to women’s right to control their own bodies, we must recognise that awareness of, or recklessness or wilful blindness to, an absence of communicated consent is sufficient to found the mens rea of the offence of sexual assault."

In an understanding of sexual justice that reflects the value of autonomy, sexual acts must be fully voluntary and free. Establishing the voluntariness of a sexual encounter rests on whether there was mutual communication of consent. The evidence at issue in disputed claims about voluntariness is primarily what was said in an encounter.

None of the documents in the Strauss-Kahn case indicate any concern by the accused for "an affirmative indication of actual willingness" in the sexual encounter that is conceded to have taken place. It is his silence on this score that is troubling, not her conflicting accounts of other matters. Placing autonomy at the heart of sexual justice means asking the right questions, of the right persons.

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