Economic and Sexual Autonomy

Economic and Sexual Autonomy Date: 08 September 2023 Lecture: Prof Rebecca Williams Lawrance - Removal of distinction between positive deception or positive caveat or failure to disclose ([41]) very welcome. Will have to think about minimum level of deception, but this distinction was not helpful. - However, problematic that the Court stated ([20]) that 'the complainant consented to every aspect of the physical act' and ([36]) that she had 'consented to sexua intercourse without imposing any physical restrictions'. - None of the women in R(F), Assange, R(B) or Lawrance had 'consented to every aspect of the physical act'; all had 'imposed physical restrictions' Physical Restrictions Case Assange R(F) R(B Lawrance - Physical Restriction Imposed No consent to semen including sperm No consent to semen including sperm Consent to semen including sperm, but not HIV virus Consent to semen but not to sperm All the women lacked consent in relation to the presence of a particular physical entity. All therefore lacked consent in relation to one specific aspect of the physical act. So, no conceptual or normative distinction between Lawrance and these other cases. - But compare McNally: consent to digital penetration, which is what happened. Simply that owner of fingers had been assigned female at birth. So if any case were to be distinguished it would be McNally, yet it was not. How Should The Law Be Reformed? Even under the common law we could avoid general tests such as that in Lawrance and Monica ('sufficiently close connection to the performance of the sexual act') and have a series of coherent and clearly distinguishable categories, e.g. physical difference. But better still might be to pick up on the CA's suggestion that 'these issues require debate as a matter of social and public policy' and restructure the law more generally. What form should that reform take? Property and Sexual Autonomy - Enact a new version of the old s 3 SOA 1956; procuring sex by false pretenses? (J Spencer 2013 (9) Archbold Review 6). - Yes and no. Not within and in addition to the current scheme; if V does not consent = rape. If V does consent, why criminal? Whole problem is that consent under the SOA 03 is binary, yes or no. - But it might point the way to a better option. Whole concept of 'fraud' in English law is more familiar in the context of property offences, which is divided up according to the method of vitiation of consent. Aligning Sexual Autonomy With Property Method Of Vitiation Stealth Force Property Offence SOA Counterpart Theft S 1 TA 68 Elbekkay, Ciccarelli, s 75(2)(d) Robbery S 8 TAOlugboja, Doyle 68 Pressure Blackmail s 21 Wellard, Bingham, Jheeta ΤΑ 68 Deception S 1 via s 2 Fraud Bingham, Jheeta, Devonald, McNally, Lawrance, Act 2006 Monica, R(F), R(B), Assange etc. Abuse of a S 1 via s 4 Fraud Kirk, C, Ali position of trust Act 2006 - Different historical relationship between the two, but in the C21 both the SOA and the property offences seek to police the boundary between wanted and unwanted transactions. - Viewed like this, the question is why we don't protect sexual autonomy in the comprehensive and nuanced way we protect economic autonomy.  Replace single offences of 'rape', 'sexual assault' etc. with 'rape by stealth', 'rape by force', 'rape by fraud' etc.? - Retention of the term 'rape' within these new offences is important both to Vs and almost certainly those legislating. Potential Arguments Against - Might not immediately fit with public opinion  But the law can lead as well as as follow, see Follow, Robinson, examples, drink driving, domestic violence. See also 'upskirting' (Now s 67A SOA 03), 'revenge porn' (s (s 33 Criminal Justice and Courts Act 2015). - Difficulties of overlap or choice of offences (e.g. Jheeta, Bingham).  But that is true of property too, see Hinks, Barton, Lawrence. An advantage of bringing the two areas into line is that we can adopt existing solutions. - And conversely, NB what is at stake:  Coherence, certainty and predictability of the law. NB number of appeals and difficulty with guilty pleas (McNally, Jheeta)  Protection of sexual & reproductive autonomy and general health.