Distinguishing Sex from Sexual Violation: Consent, Negotiation and Freedom to Negotiate

Palmer, Tanya (2017) Distinguishing Sex from Sexual Violation: Consent, Negotiation and Freedom to Negotiate. In: Reed, Alan, Bohlander, Michael, Wake, Nicola and Smith, Emma (eds.) Consent: domestic and comparative perspectives. Substantive issues in criminal law . Routledge, Oxon, pp. 9-24. ISBN 9781472469953

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Abstract

This chapter argues that consent is not an appropriate or effective way to distinguish legitimate sexual activity from sexual violation. Consent is enmeshed with a particular notion of the Kantian liberal subject and as such is inapt to respond to the bodily, affective and relational aspects of subjectivity in general and sexual subjectivity specifically. To champion consent as the standard for legitimate sexual activity implies that sexual relations are inherently asymmetric, obscures the context within which agreements to engage in sexual activity are made, and overlooks the fluid and variable nature of sexual activity itself that renders it ill-suited to a consent framework.

The Chapter considers alternative models of sex and sexual violation based on notions of communication and negotiation. Drawing on these models alongside theoretical argument and original empirical data, a new framework of ‘freedom to negotiate’ is proposed. The standard of ‘freedom to negotiate’ does not prescribe the form or content that any negotiation must take. It emphasizes instead the context in which sexual activity takes place, requiring that, at a minimum, all parties to sexual activity should have the space to negotiate both the fact and nature of their participation throughout the duration of that activity.

Item Type: Book Section
Keywords: Consent; sex; rape; negotiation; freedom; sexual offences.
Schools and Departments: School of Law, Politics and Sociology > Law
Research Centres and Groups: Centre for Gender Studies
Crime Research Centre
Subjects: B Philosophy. Psychology. Religion > BJ Ethics > BJ1395 Feminist ethics
K Law > K Law in General. Comparative and uniform Law. Jurisprudence > K0201 Jurisprudence. Philosophy and theory of law
K Law > KD Law of the United Kingdom and Ireland > KD0051 England and Wales
Depositing User: Tanya Palmer
Date Deposited: 27 Jun 2017 11:32
Last Modified: 27 Jun 2017 11:32
URI: http://sro.sussex.ac.uk/id/eprint/68822

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