Consent in English and European law

In May 2013, I was the author of an article for the former Libertarian Alliance blog (subsequently re-published in my book The Radical Traditionalist Today) discussing the age of consent in the historical and present context of English and European law. This article takes as its starting point a third party’s proposal to lower the age of consent in England and Wales. As will be seen, the article is academic and discursive in nature and addresses the concept of consent in the light of recent legislative developments. It does not at any point express support for the proposal to lower the age of consent.

Whither consent?

Libertarian Alliance, May 2013

Writing in spiked! recently, barrister Barbara Hewson suggests that the age of consent for sexual activity should be restored to its pre-1885 position of 13.[1]

Reducing the age of consent to 13 for all sexual acts would bring the UK in line with Spain, although Spain has a legal caveat that allows for prosecution where sexual consent is obtained by deception in the case of a person aged between 13 and 16. Until 1995, the age of consent in Spain was 12. Indeed, Britain’s age of consent is high by the standards of European countries, many of which have an age of consent for heterosexual acts of 14 or 15, although the age of consent for homosexual acts is not necessarily the same. Among other developed nations, Japan has an age of consent of 13, although this is subject to further restrictions.

An interesting note to this matter is that until 1993, English common law held that a boy under the age of 14 could not commit rape as a principal offender because he was irrebuttably presumed to be incapable of sexual intercourse. That a boy of that age is indeed so capable has been the subject of some publicity[2].

While there is some merit in arguing about the moral, physiological, emotional and cultural import of an age of consent, and the extent to which children need to be protected both from the attentions of adults and their peers, we should also consider all this in the context of what consent has come to mean in the implementation of the law. Consent is not, and never was, the same as a contract, whereby terms are mutually agreed and non-performance brings with it an entitlement to compensation. Rather, consent is a highly complex concept which is changing rapidly in its meaning.

It has been established in law that there is a point at which consent becomes ineffective. This has generally been expressed as the idea that a person cannot consent to an act that results in physical injury to him or herself where such injury amounts to a level just below actual bodily harm. Over twenty years ago, Sean Gabb wrote about this situation and pointed out that in addition to personal consent, an additional criterion of “public interest” is provided that judges the actions by “what is acceptable in a civilized society and what is not.”

Where there is widespread agreement on what constitutes civilization – and particularly where sexual morality is a matter of consensus, be that consensus the result of religious teaching or otherwise – there may be argued to be a valid argument as to what constitutes a public interest in sexual mores, even if such an argument is not in accordance with a purist libertarian worldview. If, on the other hand, the context is one of secularism, post-modernism and moral relativism, there can be no abiding public interest, because there is no commonly agreed moral basis for that public interest to rest upon.

There may be an appeal to “common sense” and reference to public opinion such as finds expression in the media and through various interest groups, but these things are shifting sands. To recognize that this landscape is changing is fundamental to understanding the way in which consent and sexual morality are being redefined in law. To apply these changed standards of today retrospectively to events that occurred thirty or forty years ago, and then to act as if these standards were somehow universal points of principle at that time, is a form of delusion that is dangerous and that would lead – indeed some would argue has already led – to a society that is unbalanced and hypocritical.

After the current purge of aged or dead media figures has run its course, the media caravan will doubtless move onwards –  perhaps in time to the rock stars of the era and their teenaged admirers, who were the subject of far greater infamy in their day than those currently under scrutiny. Again, there will be the suspicion that at least some of the accusations are motivated by a desire for financial compensation, and the defence put forward that only now, despite the effluxion of time, have the victims gained the courage to speak out against their attackers. For all those who are genuine victims with no ambiguity about that status, there are also those who come into a grey area where any victimhood is a matter of perception and a range of other subjective factors will come into play.

What is needed in such a situation is a proportionate view of all of the factors involved and a balanced judgement so that justice, and not merely a media-driven sector of public opinion that often veers close to a witchhunt, is served. It seems improbable that this can be satisfactorily achieved in the current circumstances.

What, then, does consent now mean? Consent can be given, but it has historically been considered invalid if there was fraud or deception involved, such that the person would not have consented had the facts been known. This has been applied in cases of impersonation, and also famously in R v Clarence (1888) 22 QBD 23 where the defendant knowingly infected his wife with a venereal disease. As well as the aforementioned invalidity of consent in cases of physical injury, R v Chan-Fook (1994) 1 WLR 689 established that the definition of actual bodily harm could apply to psychological injury as well as physical harm. This effectively means that consent can no longer cover anything more than trivial injury.

Consent within marriage was historically presumed, but fr0m 1991 (R v R) the courts have removed the exemption in law for marriage and thus given rise to the offence of marital rape. Allied to this was a change in the definition of rape, in which hitherto the victim had had to prove that there was a “continued state of physical resistance.” Lord Hale, writing in the seventeenth-century, opined that “rape…is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.” Until 2003, English law on the matter was largely framed with this maxim in mind. Since that time, however, the balance of the law has shifted considerably to give weight to the plaintiff (who may often remain anonymous) and to remove protection from the defendant (who is invariably publically named, often at the cost of his reputation even if acquitted.)

Under the Sexual Offences Act 2003, the requirements for a defence of mistaken belief in consent were made more stringent in that they must now be both genuine and reasonable. There is now a set of presumptions against said reasonableness, including where violence is used or feared, the complainant is unconscious, unlawfully detained, drugged, or is by reason of disability unable to communicate a lack of consent. This has changed what was formerly a subjective test into an objective test. It also means that a man may be convicted of rape even if he believed that the victim consented, if the court were to consider the circumstances unreasonable. It remains impossible for a woman to commit rape as a principal offender, although she may commit rape as an accomplice.

All of these things are the result of complex changes in the way that society sees the nature of consent, and of the weakening of consent as a concept and as a defence. One major factor that has prompted this has been the assertion that too few rapists are convicted; this perception continues although it would be near-impossible to establish a sound statistical basis for deciding whether someone who was in law innocent of an offence was in fact guilty of an offence. The weakening of consent has certainly resulted in an increase in rape convictions, and these are reported to be at an all-time high with a current 63% conviction rate[3]. It should not be a great surprise that if the legal definition of consent is weakened, it will become easier to obtain more rape convictions, an outcome which has been seen by a number of groups as highly desirable, and which serves both the ends of a near universally-accepted societal agenda (to see perpetrators of sexual violence punished) and a much more invidious Leftist political agenda that benefits from the demonization of men as creatures of violence and sexual aggressors. The corollary of this, however, is that some of those who are convicted would not have met the legal definition of rape that applied before the change in the law had occurred. The law is thus not merely convicting more rapists, it is creating more rapists.

It is because of this that any argument about the age of consent carries considerably less weight than it would have done in the pre-2003 era. It might, indeed, be argued that consent has largely lost the meaning that it once had. Its importance now is increasingly that of a folk memory of its former significance, where in practice such a wide range of circumstances exist that can override it or question its validity that any sensible person would be foolish to rely upon it alone as a defence. And where, as a society, does that leave us?