Inside Story

A certain class of consent

Is a concept drawn from contract law the best test of sexual assault?

Alecia Simmonds 18 June 2021 1304 words

“A Breach of Promise (A Sure Thing),” James Dobie’s 1898 etching from a painting by Walter Dendy Sadler. Wikimedia

When Frances Titley — twenty-six years old, “extremely modest and thoroughly respectable” — was sexually assaulted by her employer and landlord in 1875 she didn’t seek justice in the criminal courts. She could have tried the perpetrator, shopkeeper James Moltine, for the crime, but she probably knew that she wouldn’t have succeeded. Proving Moltine had used physical force would have been difficult because, in her words, she “could not scream” when he attacked her. She “had become paralysed with fright.”

Titley would have needed to prove a lack of consent and doing that required physical evidence of a struggle. Not just minor signs, either: the contemporary textbook Medical Jurisprudence, Forensic Medicine and Toxicology advised that “slight traces of a struggle… on the thighs and breasts” should be treated as evidence of the woman having failed to use “all her strength in her defence.” Indeed, it noted, members of a “certain class of woman” were known to “make a point of a show of resistance before yielding.”

The question of consent would also have thrown the burden of proof and the attention of the court onto Titley herself. Being orphaned and poor (she was a house cleaner in the inner-Melbourne suburb of Emerald Hill), and having previously had a boyfriend, she might well have been accused of being unchaste or belonging to that “certain class of woman.” Being seen as promiscuous meant being considered “common property,” and to this extent, outside the reach of rape laws. After all, rape was a crime of trespass against another man’s property, either her husband or father. A similar logic underpins a still-common belief that sex workers or women who enjoy sex with multiple partners can’t be raped: a woman who belongs to no man belongs to every man.

But this is not just another miserable story of women’s oppression in the Victorian era. Frances Titley fought for her rights in the civil courts and won in a way that we might not have anticipated. By proving that Moltine had promised to marry her if she became pregnant, she was able to sue him for breach of promise aggravated by “seduction” (or coerced sex).

This charge shifted the focus on to Moltine’s actions and words. He bore the burden of proving that he had neither promised marriage nor “seduced” her. And, like the vast majority of defendants sued in this way, he lost. If he had been living in the United States, where seduction in the late nineteenth century was a criminal offence, he would have gone to jail. In Australia, he was subject to the unusually large damages of £200 (double the average for the century). As the Australian reported at the time, “lovers of justice would be pleased.”

Titley v Moltine came to mind when the NSW government announced earlier this month that it would adopt changes to the criminal law’s sexual consent provisions recommended by the state Law Reform Commission. Among other things, the law will incorporate an affirmative model of consent and codify a person’s right to withdraw consent at any point.

The announcement sparked the usual tired debate about the balance between the rights of the victim and the presumption of innocence, but nobody has questioned whether consent itself should be reconsidered. While I wouldn’t recommend going back to legal actions based on “seduction,” Titley v Moltine is a reminder that consent is not the only way the law could distinguish sex from rape.

Consent’s problems are evident in the way it increasingly comes with qualifiers — affirmative consent, enthusiastic consent, communicative consent — all of which are attempts to carve out sexual agency for women from a concept that consigns them to passivity. With its origins in contract law, consent is a cumbersome, clod-footed category when applied to the delicate shadowlands of sex, power and desire.

My jurisprudence students are always surprised when I tell them that feminists have been the most trenchant critics of this use of consent. Prompted by the women’s movement of the 1970s, legal theorists like Catharine MacKinnon declared the focus on consent to be a major cause of the injustices experienced by rape survivors in the courts.

Although consent promises to focus the court’s attention on women’s sexual will, MacKinnon argues, it actually enshrines the worst gender stereotypes. By accepting that “man proposes, woman disposes,” it preserves a power imbalance in which men have sexual will and women merely permit, or don’t permit, sex — a very low bar for sexual agency.

The problem goes back to consent’s origins in contract law. Whereas the temporal boundaries of sex are nebulous, contracts govern the delivery of goods within a specified period. This gives rise to the popular idea that men are “owed” sex if consent has been granted. If a man can show that a “free and voluntary agreement” was reached at the beginning of an encounter, then he can easily claim good faith on his part.

What goods was the law imagining would be delivered when it sought to regulate sex through contract law? The woman’s body, of course — in accordance with the common law tradition of treating women as the property of their fathers and then their husbands. By the late nineteenth century, though, a series of legislative reforms had begun to shift ownership of a woman’s body (or at least a white woman’s body) from her husband or father to herself. They were now considered to have “property in their own persons” that allowed them to contract out their own bodies or their labour (unlike slaves, who were the property of others). With the exception of marital rape, which was not prohibited until the late twentieth century, the “trespass” of rape was no longer on the property of an “owning man” but on the woman. This was certainly an improvement, but the law of consent still bore no relation to the act of sex or the harm of rape.

In imagining a woman rationally consenting to the use of her body by another, the law imposed a mind/body split on an act that by its very nature dissolves such distinctions. Far from being a rational exchange between two parties, the language of sex is often an inarticulate language of gestures and sighs — of non-verbal, non-rational, corporeal communication. And this is why rape is so damaging. It is an assault on a woman’s sexual will and body at the same time. In Linda Alcoff’s words: “It is not that ‘my body’ has been taken; I have been taken.”

Contract law’s notion of a “free and voluntary agreement” also suggests that both parties reach an agreement as equals, which obscures how a woman’s consent and decision-making may be constrained by economic dependence, coercion or other subterranean forms of inequality. More fundamentally, it also ignores how women are socialised into sexual passivity and how male dominance is eroticised in almost all forms of popular media. How meaningful are the terms “free and voluntary” in a society where sexual imaginations are still overwhelmingly shaped by male power and fantasy?

The NSW amendments go some way towards recognising these complexities by specifying that consent needs to be active and ongoing, and that consenting to one act does not mean consenting to all acts. But the underlying problem remains.

We’re left with a paradox: consent is both the main problem with the law of sexual assault and the only conceivable solution. Yet no number of qualifiers will fix the fundamental mismatch between the language of contract law and the language of sex. Returning to nineteenth-century notions of seduction may be no answer, but knowing that other means have been used to prosecute sexual violence gives us more room to be imaginative in finding legal solutions. •