Professor of Law, University of Warwick
When I started to write ‘Shifting Sands? Consent, Context and Vulnerability in Contemporary Sexual Offences Policy in England and Wales’, the aim was to to try to bring into closer conversation two areas of my previous work – on sexual assault and sex work regulation. I was conscious that – despite their many differences – navigating criminal justice policy and practice in these areas involved a number of parallel themes and concerns. Trying to get a clearer sense of my thinking across, as well as within, these arenas seemed important, not least because at times I worried that there were inconsistencies within my approach. But doing this also proved to be very challenging. I was lucky to have the support of a Philip Leverhulme Prize at the time, which helped give me extra ‘headspace’ for the enterprise, but there is no doubt that this article represents the beginning rather than the end of a process.
What I hope this contribution has illuminated, though, is the extent to which, despite their diverse normative and institutional contexts, inteventions in the name of women’s sexual autonomy across these two arenas share certain trajectories that – amongst other things –highlight the complicated, unpredictable and often uncomfortable consequences of a ‘turn to context’ in law and policy, which many feminists – myself included – previously welcomed.
Paying greater attention to context represents an important step forward, ensuring that the power dynamics, constructions and constraints that impact upon (women’s) sexual decision-making are duly recognised by a legal system that has for too long hidden behind the façade of abstraction and the mutually supportive myths of privacy and freedom. But in ‘Shifting Sands’, I wanted to explore the underside of this progressive dynamic. I sought to highlight how, in both the sexual assault and sex work contexts – albeit in different ways – attending to context has often forged new (and in many ways more insidious) terrains upon which to inscribe conventional dichotomies between ‘good’ women – who are vulnerable, exploitable, and in need of protection – and ‘bad’ women – who are transgressive, corrupting, and responsible for their own behaviour and its negative consequences.
Consent – a concept already fit to burst – has been overlaid upon this contextual analysis in a way that promises progressive, sensitive and empowering results, but which risks paternalistic interventions or responses that trivialise our collective responsibility for individual precarity. Police campaigns have, for example, repeatedly positioned women as vulnerable to sexual assault by virtue of being out in public or drinking alcohol, and have emphasised the responsibility that women must bear to protect themselves from attack by being vigilant and regulating their own behaviour. Meanwhile, women who engage in commercial sex work have been regularly infantilised in policy reports, and perceived as being in need of ‘rescue’ from unscrupulous exploiters, but with a perilous conditionality that is often infringed when women seek to assert their agency against this paternalistic narrative. Interventions made in the name of protection have often served to undermine security, curtail freedom and reduce resilience.
The aim of the article is to highlight the challenged and challenging nature of concepts such as consent and vulnerability in sexual offences law and policy, once we open them up – as I think we should and must – to more contextual analyses. It is not to jettison those concepts: for one thing, I am not sure that we have a better vocabulary or a less problematic framework to replace them with. Instead, I see this article as a call to vigilance in respect of the ways in which context can be a duplicitous feminist friend, vulnerability can itself be vulnerable, and consent can be manipulated in the service of a range of broader power dynamics and policy imperatives. Attending to this requires careful attention to the lived experience of sexual offences reforms amongst those upon whom they impact most directly and intimately. It requires paying attention to the mundane messages of everyday socio-sexual interaction as well as to the crisis points of more visible criminal justice intervention, and exploring the continuities and contradictions that arise along this spectrum. It demands listening patiently, and closely, to the voices of those we perceive to be vulnerable, interrogating our assumptions about the choices of those we position as ‘other’, and uncovering the political and moral expediencies that may lie behind initiatives to individualise responsibility for what are labelled – by those involved, or by third party observers – as damaging sexual interactions.
I hope that this article can make a useful contribution to evaluations of sexual offences law and policy in and beyond the specific jurisdictional terrain of England and Wales. More broadly, I hope it can also provide a testing ground for discussions about neoliberal governance, strategies of individual responsibilisation, and the prospects for using vulnerability as a lever for social justice. My treatement of these themes in ‘Shifting Sands’ is clearly framed by a feminist commitment, and a primary interest in the lives and experiences of women, but many of the concerns that this analysis gives rise to are by no means restricted to this perspective, and echoes can – and I hope will – be found in a range of other arenas.
Vanessa Munro is a Professor of Law at the University of Warwick, who has published widely on feminist theory and the regulation of women’s bodies. She authored ‘Shifting sands? consent, context and vulnerability in contemporary sexual offences policy in England and Wales’ (2017) 26(4) Social & Legal Studies 417-440 with the support of a Philip Leverhulme Prize. She is currently working with Refuge on the relationship between domestic abuse and female suicidality, and co-editing a Scottish Feminist Judgments Project (@ScottishFemJP) with Sharon Cowan and Chloe Kennedy (Edinburgh).