Keywords

In 1970, in the Supreme Court of New South Wales, Australia, three men were charged with the sexual assault of an eighteen-year-old woman. At the centre of the trial, as with so many trials of rape and attempted rape, was the matter of consent. Across the transcripts of the trial, consent was debated in multiple ways, with the victim-survivor coming up against scrutiny of her past, her clothes, her body, and of course her actions on the night of the assault (R v Martin, Goff and Daniels 19701).

The trial, with an all-male jury, opened with the questioning of the complainant, Carolyn Jacobs, first by the Crown Prosecutor, and then by the lawyer for the Defence. Carolyn told the court that the alleged assault took place after she met one of the assailants Andrew Martin in a coffee shop in the early evening in a Sydney suburb. She had known him for a few weeks. They were later joined by Hugh Goff and then moved to the hotel across the road. Carolyn ordered a scotch and dry. She told the court she had tried a scotch and dry before, but only with her father. From then until the hotel closed at ten o’clock, she had five drinks and was feeling ‘tipsy, happy’.

Coming out of the hotel, Martin and Goff began to pick fights with another group of men, and with the police on their way, Carolyn got into a parked car with the two men. A friend of theirs was driving, and two additional men then piled into the car from the street, which sped off, driving fast. They went to the family home of one of the men, who checked his parents were not home, and gave the all-clear to come inside. Carolyn was sick outside the house more than once and then went inside with the men. In her testimony, she said that during this time they were watching TV and listening to records. She was still drunk and unwell when they left the house an hour later and did not know where she was going, as she sat in the back seat of the car with her head between her legs.

The five men and Carolyn arrived in some bushland on the edge of the suburb, and four of the men left the car. According to her testimony, Martin said to Carolyn ‘I am going to have you’, and she replied, ‘I am sick’. She tried to put her head out of the window and to crawl out of the car. According to her testimony, he pulled her back into the car. She could not get out the door, as it was stuck. He tried to pull her trousers down and told her he would tear them. She told the court, ‘I was screaming and crying. He reckoned if I was not quiet he would knock me out’. After a struggle, in which her clothes were torn, she told the court, ‘He forced my legs apart with his knee and I remember scratching him on the neck’. After the rape, the second man Adam Daniels got into the car, with his pants off, and tried to get Carolyn to touch his penis. She was still crying and refused. The third man, Goff, then entered the car and attempted to have sex with her. They were interrupted by the arrival of a police car: the men scattered and Carolyn was taken back to the police station, and she was interviewed and given a medical examination.

In the courtroom, during her cross-examination, the defence attempted to construct her as a loose girl. The lawyer for one of the men, Mr. Roden, began with a discussion about her hanging about in the coffee shop: hearing rough talk from the boys, and using rough language herself, including the term ‘get stuffed’. Defence also questioned her on her crush on another young man, Grant: this would be used to suggest that she agreed to sex with his friends, in order to become Grant’s girlfriend.

Throughout the rest of the trial, consent and resistance were debated. While legislation was in place, just how consent, force, and resistance were to be interpreted had to be worked through in the courtroom. Early in the trial, Justice McClemens was asked by the defence to clarify the legal meaning of rape for the jury. McClemens J gave the jury a direction that: ‘The crime of rape takes place when a man has sexual intercourse with a woman without her consent’. He then continued:

under our criminal law no one can be found guilty unless they have a guilty mind. If a person believes a woman is consenting and she is in fact not, but he believes she is then it cannot be said he has a guilty mind which could justify the ingredient which is necessary in any criminal case. (R v Martin, Goff and Daniels 1970)

This was an accurate technical summary of the legal definition of rape in NSW in this period, but the law and the direction considerably complicated the meaning of both rape and consent. An accused man who could successfully argue he had believed a woman consented to sex would not be found guilty of rape, opening up a significant loophole in rape law in this and many other jurisdictions.

The trial continued, in an attempt to clarify consent, non-consent, and the accused’s understanding of her own consent. That Carolyn was drinking on the night of the assault was interpreted as the first sign of her consent. By 1970, there had been some theorising over whether or not a complainant who was intoxicated was able to consent. But within this trial, the young woman who had been drinking was assumed to have given her consent. The defence lawyer intimated that, by going drinking in a hotel with men, the woman had put herself ‘in a position where this sort of thing could easily happen’. Defence suggested that the young woman’s actions may have ‘led these boys to believe that you were a girl who was available for sex even though you did not mean it to’. Her drinking, in and of itself, was seen as a clear and concise sign of her consent. And while the Justice expressed it differently, he too agreed that she might consent while heavily under the influence. In his summing up, the Judge articulated this to the jury: ‘There is drunken consent; a woman who is under the influence of liquor gives her consent under conditions where she might not otherwise do so. That is consent’ (R v Martin, Goff and Daniels 1970).

In addition to her drinking, the complainant came under considerable scrutiny for her clothes and her body. Before the rape took place, Carolyn was feeling sick from the alcohol and had lain down on the couch to rest. During her testimony, the defence lawyer claimed that in lying on the lounge, she was ‘exposing’ her ‘figure’ to the men. The complainant retorted rather tartly that she had not been exposing anything, as she was wearing trousers. But still, the defence pressed her, questioning her on the position of her arms—were they above her head, presumably highlighting her breasts? And what was she wearing on her top half? Even in the seemingly modest attire of a coat and trousers, her clothing and her body were both under scrutiny.

Further, she was questioned—intensively and intimately—on the position of her body during the assault. She was asked intrusive questions, on the precise placement of her head, limbs, buttocks, and feet. Through discussion of her body, Defence argued that the young woman participated in, and hence consented to, sex, by lifting up her body to allow the defendant increased physical contact. Though the victim gave evidence that she had physically struggled, defence was suggesting that the sex was consenting and not rape. This line of questioning added another layer to the argument that she had consented, calling attention to first, her perceived lack of resistance, and second, her actions, which supposedly allowed the accused access to her body.

There was external evidence that Carolyn had resisted her attackers. The first witness called to the stand after Carolyn herself was one of the five men in the car and a friend of the accused men. Charges against him had been dropped, and he was called to the stand under oath. Stephen Kent had overheard the sexual assault taking place. He gave evidence that he could hear her saying ‘stop it’. He again gave evidence that Carolyn called out ‘stop’, multiple times. Despite what appears to have been a clear resistance, the witness Kent interpreted it as an ambiguous message. He continued on the stand: ‘it was not soft but it was not, you know, absolutely screaming, sort of thing… It was not [a] real boisterous type of voice saying “Stop”,—or anything like that’. Within a culture where ‘no’ might be taken as a ‘yes’, even her explicit verbal opposition did not convince a male bystander that the young woman was strongly or firmly refusing to consent. Of course, Kent himself was complicit in the assault and had driven the car to the secluded location. But even he would admit that she said stop while attempting to mitigate his friend’s violence. Further, according to the Prosecution, Carolyn’s screams could be heard beyond the bush and into the local suburb: it was her cries that brought the police to the attack. Cases such as this indicate that verbal resistance was not considered a definitive form of resistance: it was enough to bring doubt that a woman might still consent while crying out ‘stop’ or ‘no’.

The final examination of consent came via the three accused men themselves. In NSW, defendants were able to give an unsworn statement. The unsworn statement was read out to the court, but was not subject to cross-examination, and was generally used in rape trials to suggest that the complainant had consented. In this instance, all three men gave unsworn testimony, claiming that the complainant had consented to sexual intercourse. One of the men, for instance, put on the record that she had agreed to sex ‘not only with words but by the way she acted and carried on’. Another reported that he thought she was consenting to sex because she had explained in her past that she had consorted with men:

She told me that when she lived in Newcastle she used to sneak out at night when her mother was asleep, to meet her boyfriend. She gave me the impression that she was a girl who liked boys… [on the night of the assault] she lay on the lounge in a very unladylike manner. (R v Martin, Goff and Daniels 1970)

Similarly, his co-accused gave unsworn testimony that the girl had acted provocatively while lying fully clothed on a lounge: ‘it didn’t leave much to the imagination to see what an attractive figure she had’. He also suggested that ‘I know when I went there I firmly believed she knew she was expecting to have sex when she went into the car, and I believed she was not a good girl’. Consent here was understood through her actions on the night—her sprawling on the lounge—and her actions in the past—sneaking out to meet her boyfriend and the perception that she was ‘not a good girl’. The defendants took these actions, in the past and present, as consent, rather than listening to her verbal non-consent, crying ‘stop’.

This particular court trial was in 1970, and provides a snapshot of a moment in time, before feminist-driven reforms of culture and the law. Yet it is illustrative of the deep and long-lasting problems with interpreting consent in cases of sexual violence. The offenders claimed that the young woman did consent to sex with them, despite eyewitness testimony that she called out stop. Her actions and body were interpreted as consenting, above her screams and her verbal no. Her past was imagined as proof that she would consent to any sex with multiple men. Despite her lengthy questioning on the stand, her voice is lost, in this search for consent.

This is an enduring problem in processes in the criminal justice sector. There was significant law reform around sexual assault in the 1970s and 1980s across Western jurisdictions, yet consent has remained a difficult issue (Featherstone 2021). A lack of consent was, and is, very challenging to prove within the criminal trial, especially with the rules of evidence and expectations of proof that dominate the adversarial trial. A general absence of witnesses, a reliance on notions of force and physical harm to prove resistance, and the general sense that ‘imperfect’ victims would automatically consent to sex, ensure that consent and non-consent are tightly debated within the courtroom, both in the past and present.

Consent is, of course, not the only problem with preventing, policing, and prosecuting sexual assault. Rates of sexual assault remain high, across the globe. Sexual violence is endemic in most cultures and has proven remarkably resistant to a raft of cultural and legal reforms across the late-twentieth century. Sexual assault continues to be a major form of violence against women, but it is also a significant problem for trans people, children, and some men. Some groups are more vulnerable than others, and people from LGBTIQ+ communities are at a higher risk, especially trans people. Indigenous women, children, and men are sexually assaulted at higher rates than non-Indigenous people and are a target for sexual violence in all of its forms across their lifespan.

From Consent to Affirmative Consent

To begin to tackle the profound problem of sexual violence, some jurisdictions have begun to shift to a model of ‘affirmative consent’, meaning consent should be clearly articulated in all sexual encounters, with a simple ‘yes’ or ‘no’. Ideally, partners would both give an ‘enthusiastic yes’, and continue to affirm their willingness as the sexual encounter continued. On the surface, this appears an exciting yet simple solution. Affirmative consent allows for agency, for precise boundaries, and promotes clear communication. It allows for the idea that desire and consent can both change during a sexual encounter. Popular metaphors of consent—including the ‘cup of tea’ animation which has been viewed millions of times on YouTube—explained basic ideas of pleasure, desire, and choice to young people. At worst, if affirmative consent is not received, the encounter could be viewed as a sexual assault. Affirmative consent is an important starting point for conversations about sex.

Affirmative consent is, however, not a simple solution to sexual and gendered violence, as the rest of this book will explore. Given the complex power relations involved in sexual encounters, not all victims are able to articulate ‘yes’ or ‘no’, and there are specific gendered disadvantages. Under an affirmative consent model, women and other disadvantaged groups remain vulnerable to pressure, outright coercion, or physical violence.

This book examines the ways that consent operates in contemporary culture, suggesting it is a useful starting point for respectful relationships. Our work, however, seeks to delve deeper, into the more complicated aspects of sexual consent. The rest of this chapter will historicise consent, giving a clearer understanding of the complexities of consent, violence, and coercion. Chapter 2 will then examine the recent shift towards affirmative consent: how it is imagined, and how it has been introduced in multiple jurisdictions. Why has this become an important model for sex educators, policy makers, and legislators? It will consider the value of the affirmative consent model, to provide the background to the coming chapters, which seek to problematise simple ideas of affirmative consent.

Chapter 3 will consider consent within relationships and in particular the ways affirmative consent has been incorporated into community understandings of sexual consent and non-consent. It will explore young adults’ expectations regarding consent communication and negotiation, as well as coercion within intimate relationships. Chapter 4 explores young people’s understandings of consent further, considering consent, sex education, and women’s own narratives of assault. It explores the lacuna in education around consent, and how young women have themselves stepped up to fill in these gaps.

Chapter 5 will examine consent within vulnerable communities, with a focus on refugee and migrant women. It explores the complex ways consent operates in these communities, including the limits of criminal justice responses, and the lack of support services available to women. Further, it explores the ways women themselves advocate for their rights, within familial, kinship, and community groups. Finally, Chapter 6 focuses on the intersections between sexual consent and reproductive rights, especially within intimate partner relationships. It explores reproductive coercion and consent, and the ways forward for reproductive justice.

Together, we examine the ways meaningful consent is difficult, if not impossible, in relationships that involve intimate partner violence or family violence. It considers the way vulnerable communities need access to information on consent. It highlights the difficulties of consent and reproductive rights, including the use (and abuse) of contraception and abortion. Finally, it considers the ways that young women are reshaping narratives of sexual assault and consent, as active agents both online and offline. Though this work considers victimisation, it also pays careful attention to the ways vulnerable groups take up their rights and understand and practice consent in meaningful ways.

Theories and Methodologies

There has been an increase in interest in popular and scholarly writings on consent, in the past decade. It is largely feminist in origins, grappling with the nuances of sexual violence in our contemporary world (Gilmore 2022), and often aimed at young people who are attempting to navigate social and sexual relationships (Popover 2019). Legal academics have also written important work on consent, in an attempt to define and articulate aspects of consent in legislation and legal practice (Kim 2019). Other scholars have suggested that the problem with affirmative consent is the legal, technical and bureaucratic apparatus that surround it. There are concerns—even from feminists—that everyday sex might be criminalised (Halley 2016). Much of this work shows, as Simon Bronitt (2021) and others have argued, that law reform is insufficient without social and cultural change. Recent work on consent is beginning to interrogate this nexus.

Joseph Fischel’s surprisingly playful investigation of consent argues that it is an imperfect means of monitoring sexual experiences (though, as he adds, it is probably better than other visions of criminalisation including ‘force’ or ‘resistance’). Fischel complicates ideas of consent, suggesting that consent does not equal desire or pleasure. His provocation is this: that rhetoric around consent can mean that people who experience sub-par, boring, painful, or ‘unsexy’ sex might redefine their experience as non-consenting and hence criminal (Fischel 2019, 20). Instead, he advocates for a feminist sexual utopia, where we prioritise:

‘best practices for sex’, whereby we facilitate sexual literacy, access to sexual information, and access to sexual health resources, and whereby we critically interrogate sexual pressure, gender norms, drinking culture, media representations of sex, and the like. (Fischel 2019, 21)

This returns us to the important yet notoriously tricky notion of cultural and social change.

Most comprehensively, Tina Sikka’s illuminating book Sex, Consent and Justice: A New Feminist Framework (2022) configures consent within the framework of the #MeToo movement. Drawing on a series of excellent case studies including chapters on Harvey Weinstein, Louis C.K, and NYU professor Avital Ronell, Sikka argues that affirmative consent (and its variations) is insufficient, as it assumes a ‘liberal model of agency’ which cannot be assumed (Sikka 2022, 45). Instead, she argues for a movement towards ‘an ethic of care, interdependence and bodily enactment’, known as ‘pleasure and care-centred ethic of embodied and relational sexual Otherness’, where both pleasure and care are central (Sikka 2022, 48, 60–63). Sikka has provided an incisive critique of current sexual ethics, and an exciting ethical and philosophical framework for thinking about sex, with a focus on restorative justice. Though there are regular points of crossover—including an emphasis on sexual agency for women—our goal here in this work is not as grand. Our work is an attempt to centralise sexual autonomy, reading it against a backdrop of the challenges of consent and affirmative consent faced in contemporary Western cultures. We attempt to ground these complexities in time and place and to explore the practicalities of affirmative consent for diverse groups. In this way, our aim is less ambitious, but nonetheless makes an important contribution to understandings of sexual violence by those working on the frontline of service provision, sex education, and in-and-around the criminal justice sector.

It is clear that a reinvention of sexual norms is needed. While catchcries such as ‘consent is sexy’ have indeed attempted to bind pleasure and consent, one suspects it is more of an attempt to make affirmative consent palatable to young people engaging in new sexual encounters. Yet we need to refigure how to make consent as critical to the pleasure of the sexual endeavour, centralising better communication and more joy. It’s not merely about gaining the green light of a ‘yes’, but how mutual desire might enhance sex for everyone involved. Unlike Sikka, we do not argue for an entirely new ethics of sexuality, focused on care. Yet, we do argue, ultimately, that we need to expect more from affirmative consent and be braver when discussing it within our culture.

None of this is easy, of course. We are keen to promote sex-positive cultures, where partners can navigate sexual spaces with passion, desire, sensuality, and even carnality. Yet our work—in this book and elsewhere—is probably more concerned with the reverse. Together, the authors have long histories of research and work on various forms of sexual and gendered violence, abuse, and coercion. It is unsurprising then, that the focus of this work is on flushing out the power inequalities that render a partner unable to navigate consent or advocate for their own somatic or philosophical autonomy. And perhaps this is part of the problem: that it is easier to default to defensive positions than to think more daringly about ways affirmative consent could and should work.

It’s also true that interest in consent and affirmative consent has not been driven by academic research but by survivors. The #Metoo movement saw survivors speak out against perpetrators, spearheading a global exposé of male violence against women and others. Social media proved an imperfect means of communicating about violence—in particular, we note that white voices all too often silenced women of colour, Indigenous women, and other marginalised groups (Ryan 2019). Despite its limitations, social media has also provided a powerful tool for young women to discuss consent. For instance, in February 2021, the then-student Chanel Contos posted on Instagram, asking if any of her friends and followers had been sexually assaulted while at school. Within a day, she had 200 replies, mostly charting abuse amongst students at Sydney’s elite private schools. Her broader petition garnered an enormous response, and she established a platform, www.teachusconsent.com, where young people could sign a petition for better sex education around consent, and leave their anonymous testimonies of non-consenting sex. The shocking testimonies and Contos’ outreach to federal and state ministers led to the introduction of sex education around consent in all Australian schools, through the mandated national curriculum (see Chapter 4 of this volume for more).

Though activists had been working in this space for many years, online initiatives drove discussion about consent into the mainstream, with politicians enacting significant legal change. Individual activists have been powerful voices for reform, and we will cover just two of many here. The trial of Brock Turner in 2016 made news around the world. On the night of the assault, at about 1 am, two international students were riding their bikes home and came across a man lying on top of a woman near a dumpster. She did not appear to be moving. The male students approached, and Turner ran off. He was chased by one of the students, and pinned down until the police arrived. The woman was unconscious, and semi-naked. Turner would later be charged with three sexual offences. At trial, the offender Brock Turner constructed himself as a victim (of college life, of drinking, of peer pressure) (Brand 2022). The eulogising of his status as an elite swimmer and the fear around the loss of his ‘potential’ for what his father described on the stand as ‘twenty minutes of action’ are excellent examples of the ways masculinity and the ‘good bloke’ are shaped during trials for sexual assault. But the most controversial was his sentencing. Found guilty by a jury of three sexual offences, Judge Aaron Persky (a fellow Stanford alumni) sentenced him to only six months in county jail and a three-year probation, far below expectations for these charges. Turner would be released after only three months in jail.

The case is a turning point in thinking about consent. The frenzied response to the sentencing—felt across the globe—was startling. For those of us working on sexual violence, it was deeply unsurprising, yet it evoked a substantial backlash across the mainstream. An important part of this was the activism of the survivor, who would out herself as Chanel Miller. Her extraordinary victim impact statement—published first online on Buzzfeed—was a powerful evocation of the impact on her as a victim and survivor (Baker 2016). She did not, could not, consent, and she returns to the notion of consent multiple times during her statement. But as she told the court, ‘I had no power, I had no voice, I was defenseless’. Even in this case—with male witnesses and medical evidence of assault—it was the offender who was initially imagined as the victim. Yet Miller, in her statement and later in her biography, reframed ideas of consent for the general public. Persky would later be recalled from the bench, and the state of California introduced minimum sentences for sexual offences.

In recent years, other victim-survivors have made their mark on understandings of consent. In Australia, Saxon Mullins drove legal change in NSW and other states, after a horrific sexual encounter in the back alley of a nightclub in Sydney. The trial (and later, a retrial) revolved around the issue of consent: both agreed that anal sex had taken place, but the accused Luke Lazarus claimed she had consented, while Mullins said she had not. She told the court that she cried ‘Stop’ and repeatedly asked to go back to her friends (R v Lazarus [2017] NSWCCA 279).

The trial also interrogated whether she could in fact consent: under NSW law, a person could be deemed incapable of consent if they were ‘substantially intoxicated’ by alcohol or drugs. Finally, the trial explored whether or not Lazarus knew she did not consent: in NSW, it had to be proven that he had a ‘guilty mind’ and either acted carelessly about her consent or had no reasonable grounds for believing she consented. Like the trial of Brock Turner, much of the courtroom action revolved around Lazarus and his future potential: ‘I could have been a CEO’, he would state at his sentencing hearing (Hall 2015). After an appeal, he was eventually acquitted, during a second trial with no jury. It was only later, when the survivor Saxon Mullins spoke to the mainstream media, that we found her voice: it was a voice that would lead to legal changes to consent laws in NSW, with legislation now demanding affirmative consent from both parties.

This book acknowledges, from the start, that much of the important work on consent has been done by survivors and activists, rather than by academics. Here, we bring together new scholarly ideas about consent, highlighting a range of ideas about race, gender, sexuality, feminism, and bodily autonomy, across multiple disciplines. It seeks to show the ways ideas about consent have shifted and changed over time and place. The recent focus on affirmative consent is a step in the right direction. It allows—theoretically—for agency, for precise boundaries, and promotes clear communication. It enables the idea that desire and consent can both change during a sexual encounter. Affirmative consent is an important starting point for conversations about sex.

Yet our work also seeks to delve deeper into the more complicated aspects of sexual consent. It examines the ways meaningful consent is difficult, if not impossible, in relationships with significant power imbalances (including in many heterosexual relationships). Most notably, sexual autonomy is problematic for partners involved in relationships that include intimate partner violence or family violence, broadly defined. So too, this work considers the way vulnerable communities need access to information on consent. It highlights the difficulties of consent and reproductive rights, including the use (and abuse) of contraception and abortion. Finally, it considers the ways that women themselves are reshaping narratives of sexual assault and consent, as active agents both online and offline. Though this work considers victimisation, it also pays careful attention to the ways vulnerable groups take up their rights and understand and practice consent in meaningful ways.

The Limits of Consent takes a mixed-methods approach, designed to reflect our interdisciplinary strengths and outlooks. As authors, we have expertise across a range of disciplines, crossing history, gender studies, sociology, psychology, and cultural studies. We bring our own knowledge and skillsets to this work. In the main, we are interested in qualitative research, and interpreting the nexus between sexuality and culture. There is one qualitative survey, which examines the way young people understand consent. This is a base for our work, to interrogate the ways people interpret and apply theoretical ideas of consent. Beyond this, we explore a raft of mixed methods data, including interviews, legislation, case law, public inquiries, criminal trial transcripts, medical journals and feminist writing as well as various forms of media, online databases, and social media. By exploring a wide range of texts and techniques, we offer a broad and inclusive study of the multifaceted problems and opportunities opened up by both consent and affirmative consent.

All interviews and the survey have received ethics approval from the University of Queensland’s HASS LNR Committee (HREC Ref 2022/HE000098; HREC Ref 2020001829; HERC Ref 2022/HE001066; HREC Ref 2021/HE001398). Full details of the interview and survey methods are contained in endnotes in each chapter, but we note that consent was obtained from all participants of interviews, who were given relevant information related to participation, withdrawal, use and storage of data, and confidentiality, prior to interviews taking place.

Our work is guided by feminist research practices and approaches, across our disciplines. While we do deal extensively with authoritative bodies (including government, the law, medicine), we are invested in prioritising the ways that individuals, especially victim-survivors, experience and mediate consent and sexual assault. We are interested in subjectivities as ‘precarious, contradictory and in process, constantly being reconstituted in discourse each time we think or speak’ (Weedon 1987, 33). In doing so, we focus on who can and cannot speak and what can be spoken (Smith and Watson 1996, 10). First person accounts of suffering and harm have long been used to contest power imbalances, and feminist scholars consider ‘personal storytelling in informal settings’ a testimonial form (Suk et al. 2019).

We note, too, the complexities of terminology. It is statistically true that women are more vulnerable than men to sexual violence, and that men are, in the main, perpetrators. The situation is, however, complex. As noted above, non-binary and trans people are especially vulnerable, and of course men and boys can also be victims of sexual assault and abuse, at home, in public, and in institutions. In some chapters, however, we do prioritise women as victim-survivors, as that is where the historical and contemporary data has led us. This needs to be read against an acknowledgment that it is not a simple binary, and though we write from feminist standpoints, we are careful to not assume that women are always victims, nor men are always offenders.

From Property to Autonomy

Drawing together the rich interdisciplinary resources on consent, including both historical and contemporary discussions, allows for a deeper investigation into both consent and affirmative consent, and the ways these theories of sexual violence and sexual autonomy are understood in theory, and enacted in practice. Our contemporary landscape retains important historical legacies that have left significant holes in social ideas of bodily authority and sexual autonomy. By tracing the changes and continuities, the rest of this chapter will explore the development of a model of consent, as an important context to current social, cultural, and legal frameworks.

Consent was not part of the conceptualisation of sexual assault in early laws which originated from medieval Canon, Roman, and Germanic traditions. Instead, rape was intertwined with the crime of ‘ravishment’ or raptus in Latin (Walker 2013, 431). Raptus was defined as a property crime: the abduction of a woman to be married against her will and the will of her parents, often involving sexual violence. To prosecute this crime, women needed to demonstrate their non-consent to sexual intercourse, yet, there also needed to be proof of their parents’ or guardians’ non-consent to the marriage (Dunn 2012, 2–6). Consent was not a key component of these early understandings of rape, and yet in England, until the passing of a statute in 1576 during Elizabeth I’s reign, raptus was the only way for women to prosecute sexual violence (Block 2013, 24).

This new law, and its take up in the courts, saw rape become defined as ‘carnal knowledge’ (penetrative intercourse) of a woman over the age of ten years ‘against her will’ (Coke 1680, 60). Sexual consent of the individual, in theory at least, became a central element of rape and its prosecution. Yet implementation proved difficult when culture did not acknowledge women’s bodily autonomy and hence her ability to consent. Julie Hardwick (2020, 246) argues that across Europe in this period, sexual violence was a ‘mundane aspect of daily life’; in France, men frequently used force and coercion in consensual romantic relationships to obtain sexual intercourse from their girlfriends or wives. English culture too portrayed heterosexual courtship as a process in which men ‘wore down’ the will of women, to obtain sex, and then usually marriage (Barclay 2013). Further, some women were literally excluded from consent: across Europe, marital rape was lawful, and female sex workers were legally and culturally barred from prosecuting men for rape (Cody 2022).

For most women, however, the legislation acknowledged a woman’s ‘will’. Yet despite this, the courts did not deeply interrogate her consent. A victim’s testimony was not sufficient proof of non-consent. Women and children were not deemed credible witnesses, because of perceptions that both groups were less rational and trustworthy than men (Walker 2013, 434–435). Moreover, the longstanding cultural norm that women were sexually insatiable shaped the belief that only active resistance demonstrated non-consent. To prosecute and convict, early modern judges and juries required evidence of the victim’s verbal and physical resistance, witnesses to such resistance, injuries to the body, emotional distress, as well as the hasty reporting of the assault to neighbours, family, and the authorities (Walker 2013, p. 434). Otherwise, it was assumed that the woman had consented to the intercourse (Mills 2009). This assumption was also present in cases where a woman became pregnant after an assault, for the prevailing medical frameworks of the day suggested that conception could only take place if a woman orgasmed during intercourse. Within this logic, pregnant victims were assumed to have consented (Block 2013, 29).

Other groups were simply excluded from notions of consent, in the most profound ways. For enslaved women and children in Europe and its colonies, there was no legal recourse for sexual violence perpetrated by masters, owners, or fellow slaves, particularly if women were from ethnic or religious minority groups (Herzig 2022). Enslaved people were human property; they had no legal rights and no bodily autonomy, and refusal of sex was often met with punishment. In European colonies such as America, the consent of enslaved African American women, as well as First Nations American women, was irrelevant to white male perpetrators, who saw sexual violence as inherent to colonialisation, the conquest of land, and the maintenance of a racial hierarchy (Block 2006, 54–55).

Force and Consent

In the nineteenth century, legal and cultural conceptualisations of consent changed across Europe and the colonial world, increasingly redefining the role of ‘force’ in sexual violence. After mid-century, there was a gradual rise in the prosecution and conviction of rape throughout Europe, as well as a consistent increase in states’ codification of sexual assault (D’Cruze 2013, 446–447). In Britain, ideas about consent broadened somewhat. Previously, a woman’s active resistance, and male ‘force’ had been key to demonstrating non-consent in rape cases. Over the nineteenth century, courts increasingly accepted that women were often made ‘insensible’ through drugs, alcohol, ‘swooning’ (fainting), or their ‘nerves’ and were frequently forced to ‘submit’ to intercourse because of fear, or the attacker’s authority (Bates 2016, 108). Judicial decisions moved away from concepts of force to a newer idea of consent: a woman no longer had to ‘resist to the utmost of her strength’ (Hamilton and Addison 1947, 80; Tadros 1999, 321–326).

These nascent changes to ideas of consent did not, however, mean that physical violence and resistance were removed as criteria in rape cases. While technically, the statutes no longer insisted on the use of ‘force’, such myths about physical resistance continued to shape medical and legal approaches to consent, well into the twentieth century. In practice—in policing and in the courtroom—‘force’ and physical violence remained the primary way prosecutors framed non-consent. Physical violence and physical resistance both made rape far simpler to successfully prosecute—and the absence of both rendered a prosecution difficult and unlikely.

These changes coincided with emerging Victorian models for sexuality, with women no longer seen as lustful or insatiable, but naturally chaste and modest, capable of becoming ‘fallen’ through sexual impropriety (Murdoch 2013, 135). By contrast, men were now regarded as having uncontrollable, potentially violent sexual desires, leading to assaults or the use of brothels (Clark 1987, 23). Cultural norms had an impact in the nineteenth-century courtroom, where women needed to demonstrate that they were innocent of inviting or encouraging the assault. Rape trials centred heavily on the reputation of female victims, particularly if they were working class, a group deemed more prone to sexual immorality (D’Cruze 1999). Judges and juries focussed on whether a victim encouraged the assault through her behaviour, her location (whether in the street or home), her relationship to the assailant, and her response to the assault including whether she cried out or resisted (Jones 2000).

These perspectives on sexual violence and consent were infused into Britain’s colonies across the world, with additional racialised or colonialist perspectives on gender and sexuality. In rape trials in nineteenth-century India, South Africa, New Zealand, and Australia, white settler and colonised women were required to demonstrate that they were chaste, moral victims who had not invited or encouraged the sexual assault (Thornberry 2016; Cunningham 2020; Kolsky 2010; Kaladelfos 2012). Throughout these colonies, white settler-colonist women’s claims about non-consent were much more readily believed than First Nations or non-white women. This was owing to scientific and cultural racial theories that suggested such women were ‘naturally’ immoral or hyper-sexual, as well as beliefs that they were prone to produce false accusations of rape. White male settler-colonists were rarely charged, prosecuted, or convicted of rape against non-white women, while First Nations and non-white men were convicted at much higher rates, particularly when the woman was white (Scully 1995). This disparity was largely due to racial theories which defined colonised men as hypersexual and aggressive, but it was also because of English colonialist beliefs that such men were ‘primitive’ or ‘naive’, and thus less knowledgeable of gentlemanly sexual norms. In Aotearoa, New Zealand, such perspectives—alongside fears of Māori military resistance—encouraged English-born judges to punish Māori men for rape leniently. Caitlin Cunningham explains that these judges believed that Māori men, as less ‘civilised’ than Englishmen, ‘did not yet share a European cultural aversion to rape’ or they had confused ‘European respectability norms’ (Cunningham 2020, 74). By contrast, in nineteenth-century North America, similar ideas about ‘savagery’ were used to support cultural beliefs that Black men were ‘naturally’ sexually violent. Post-emancipation, Southern societies in particular used the concept of the ‘black rapist’ to support segregationist laws and to condone the widespread lynching of black men by white mobs (Freedman 2011).

Modernising Consent?

Across the twentieth century, there were monumental changes to gender relations and sexual politics. Two world wars highlighted changing attitudes towards sex, from reports of male soldiers’ rapes of enemy and ally civilians, soldiers’ use of brothels abroad and fears about high rates of venereal disease, and reports of ‘khaki fever’, or young women’s sexual interest in soldiers at the home front (Woollacott 1994; Harris 1993). World War Two (1939–1945) saw unprecedented levels of sexual violence occur in Europe, particularly by Nazi German soldiers against Jewish women in death and internment camps (Sinnreich 2008). Yet, it was not only Nazi soldiers involved in such crimes; Soviet and American liberators participated in mass, systematic rapes of local civilian populations, often as a means to assert authority over territories, offend the ‘masculinity’ of enemy forces, and also to ‘bond’ with fellow soldiers (Herzog 2011, 87; Grossman 1995).

In the postwar decades, legal prosecution of rape across the West began to rise steadily, and there were growing cultural and political discussions about sexual violence. In 1950s Australia, for instance, arrests for rape did not increase over this period but conviction rates for cases that did make it to trial were much higher than previous decades (Featherstone and Kaladelfos 2016, 38–39). Similarly, Shani D’Cruze (2011, 37) suggests that in the UK, there was a ‘sustained increase in cases of sexual violence reported after the Second World War’. Nonetheless, these changes did little to dispel existing myths about consent, nor did they change problematic rape laws or the actual incidence of sex crimes. Rape continued to be reported infrequently and prosecuted with varying degrees of success across Western nations. Globally, many groups including colonised people, First Nations people, non-white people, and queer communities remained vulnerable to sexual abuse.

A turning point was the emergence of second-wave feminist and radical political groups across the West from the 1960s to 1980s, leading significant shifts in public discussion about consent and sexual violence. Feminist and women’s liberation movements in the US, UK, and Europe began to protest the sexual, domestic, and physical violence that women faced in their daily lives and legal and cultural barriers to justice (Bourke 2020, 138). Activist groups pointed out how women were frequently blamed for rape, seen to consent because of their clothing, or the mere fact of walking home at night. Protests such as the early ’70s ‘Take Back the Night’ marches sought to disprove such myths, while night vigils such as the one held in Brussels following the International Tribunal on Crimes Against Women (1976) memorialised female victims of sexual assault (Take Back the Night 2023; Russell and Van de Ven 1976). Similar vigils and rallies were held across the US, Europe, and Australia, as well as protests decrying the recently reported mass rapes by the US and Australian soldiers during the Vietnam War (Herzog 2011, 165; Radford 2019).

Second-wave feminism made weighty changes to cultural concepts of rape (Griffin 1971). Most infamously, American feminist Susan Brownmiller’s Against Our Will (1975), which argued that rape myths were not based on evidence and that rape was a patriarchal tool to ensure women’s compliance. Black American feminists also noted that race and class were important factors in rape, often overlooked by white feminist movements. Legal academic Kimberlé Crenshaw’s (1989) introduction of ‘intersectional’ feminism in the ’80s showed that rape was historically a tool of white, male racial domination over black women. Concepts of rape trauma emerged, highlighting the emotional and psychological trauma of rape upon victims, which would later shape law reform (Burgess and Holmstrom 1974). Through growing research, public protest, and media discussions of sexual violence—particularly mainstream media coverage of rape trials—feminist groups achieved significant legal and cultural reforms in the Global North. In the 1970s and 1980s, many countries broadened archaic legal definitions of rape, and ‘rape shield laws’ gave some protection to women at trial (Cassidy 2021; O’Neil 2008).

Despite the profound changes across the twentieth century, there was little renovation of concepts of consent. In theory, at least, issues of consent were rendered central in definitions of rape in Western cultures at this time, but in practice, it was a difficult issue (Freedman 2013, 3–4). To prove a sexual assault, it had to be shown that the sexual act took place and that the complainant did not consent to the act. The onus was on the prosecution to prove the lack of consent (Hamilton and Addison 1947, 80). Further, to be found guilty, it had to be shown that the accused knew the complainant did not consent to the act.

Reform proved slow and unwieldy across most jurisdictions. One of the more innovative reforms of this period was the Michigan Criminal Code of 1974. The Michigan Criminal Code attempted to clarify issues of bodily autonomy. The legislation was stripped back, and rape was expressed as occurring when any of the following circumstances occurred: when under the age of consent (defined as under 13, or under 16 in instances where the victim was under the care of the accused); where the victim was mentally incapable or physically helpless; or, where force was threatened or when force or coercion was used. Though the term ‘consent’ did not appear in the Code, the acknowledgement of coercion allowed that even when consent was given, it might not be given freely (Cobb and Schauer 1974). Further, the Code’s Model Jury Directions provided that a person:

Consents to a sexual act by agreeing to it freely and willingly, without being forced or coerced. It is not necessary to show that the complainant resisted the defendant to prove that this crime was committed. (Michigan Supreme Court 2014, s. 20.27)

Examples of coercion given included the threat of violence and withdrawal of housing, therefore expanding the conditions of coercion. In the Michigan Code, we see the clear articulation that: consent is not indeed consent unless it is freely given; that sexual activity cannot be assumed to be consensual if coercion is present; and that a person does not need to ‘resist’ to disprove consent.

Similar attempts to broaden ideas about rape and consent appeared in the ’70s and ’80s across the US, Europe, the UK, and Australia. Movements to criminalise marital rape such as the British ‘Rape in Marriage Campaign’ rejected notions that husbands had a ‘conjugal right’ to sex from their wives, even without their consent. Marital rape was criminalised in British, European, and Australian jurisdictions from the late ’70s to late ’90s, and although most America states criminalised marital rape by the ’90s, many states’ laws continue to position marital rape as a less serious form of rape (Yllö and Torres 2016). Intimate partner violence remained difficult to prove and prosecute, with consent a tricky issue. Meanwhile, ‘date rape’ described assaults that often took place on college campuses, by male students against female students they were friends or acquaintances with, or dating. Assaults frequently followed dates or parties, with perpetrators arguing that women’s behaviour signalled consent to sex, or an entitlement to sex (Boumil et al. 1993). Old myths about consent continued to reassert themselves, in new forms, despite decades of feminist intervention.

Conclusions

Ideas about consent shifted considerably over time and place. Yet in our contemporary world, threads of older concepts of consent and non-consent, of women’s inability to hold responsibility for their own bodily autonomy, and of men’s right to access women, all remain in one form or another. The notion of women as property was undermined, but never fully. Attitudes towards force and physical violence remained, and even in the late twentieth century, it was difficult to argue for non-consent without considerable evidence of physical resistance. ‘He said/she said’ arguments plagued issues of consent at trial. Feminists were able to unsettle many rape myths, but attitudes towards consent and non-consent remained stubbornly resistant to change, despite the immense cultural and social transformations of the twentieth century. It would take a considerable rethink—driven initially by young people—to revolutionise ideas about consent, as the following chapter will chart.

Note

  1. 1.

    State Records NSW: Court Reporting Branch: NRS 2713, Criminal Transcripts, Supreme Court, R v R v Martin, Goff and Daniels, 1970. For more on the trial transcripts, see Lisa Featherstone, Sexual Violence in Australia, 1970s–1980s: Rape and Child Sexual Abuse (London: Palgrave Macmillan, 2021), p. 32. All names of victims and accused have been anonymised.