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First published 2004 by Ashgate Publishing

Published 2016 by Routledge

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Copyright © Mark Cowling and Paul Reynolds 2004

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British Library Cataloguing in Publication Data

Making sense of sexual consent
1. Sexual consent 2. Sex and law
I. Cowling, Mark II. Reynolds, Paul, 1962-
306.7

Library of Congress Cataloging-in-Publication Data

Making sense of sexual consent / edited by Mark Cowling and Paul Reynolds,
p. cm.
Chiefly revisions of papers presented at a conference on “Making Sense of Sexual
Consent” held at Edge Hill College in June 2000.
Includes bibliographical references and index.
ISBN 0-7546-3687-9
1. Sexual ethics—Congresses. 2. Sexual consent-Congresses. 3. Rape-Congresses.
I. Cowling, Mark. II. Reynolds, Paul, 1962-

HQ32.M35 2004
176—dc22
2004007440
ISBN 13: 978-0-7546-3687-8 (hbk)
 Contents

List o f Tables and Figure vii

Notes on the Contributors ix
Preface xiii

Introduction 1
Mark Cowling and Paul Reynolds

Part 1: (More) General and Theoretical Themes 15

1 Rape, Communicative Sexuality and Sex Education 17

Mark Cowling

2 Feminist Approaches to Sexual Consent: A Critical Assessment 29

Allison Moore and Paul Reynolds

3 Sexual Ethics and the Erotics of Consent 45

Moira Carmody

4 The Language of Refusal: Sexual Consent and the Limits of Post-

Structuralism 57
Gideon Calder

5 The Age of Consent and Sexual Consent 73

Matthew Waites

6 The Quality of Consent: Sexual Consent, Culture, Communication,

Knowledge and Ethics 93
Paul Reynolds

Part 2: (More) Specific and Practical Themes 109

7 ‘Risky’ Women, Sexual Consent and Criminal ‘Justice’ 111

Margaret S. Malloch

8 Prostitution and Consent: Beyond the Liberal Dichotomy of ‘Free or

Forced’ 127
Barbara Sullivan

9 The Construction of Sexual Consent in Male Rape and Sexual Assault 141
Philip N. S. Rumney and Martin Morgan-Taylor
vi Making Sense of Sexual Consent

10 Beyond (Hetero)Sexual Consent 171

Karen Corteen

11 ‘Sexual Rights’ and ‘Sexual Responsibilities’ within Consensual

‘S/M’ Practice 195
Andrea Beckmann

12 Understanding Sexual Consent: An Empirical Investigation of the

Normative Script for Young Heterosexual Adults 209
Terry P. Humphreys

13 People with Learning Disabilities: Sex, the Law and Consent 227
Michelle McCarthy and David Thompson

14 Sex is Violence: A Critique of Susan Sontag’s ‘Fascinating Fascism’ 243

David Renton

15 ‘In the Field and In There’: Some Ethical Dilemmas in Researching

Sexualities
John Gibbins 255

Index 273
 List of Tables and Figure

Table 1.1 Possible Steps to Breast Kissing Following Antioch Policy 20

Table 1.2 Example of a Guttman Scale 21
Table 9.1 Recorded Rapes of Males in England and Wales 146

Figure 1 The Parameters for Understanding Sexual Consent 100

 Notes on the Contributors

Andrea Beckmann is a Lecturer in Criminology at the University of Lincoln. Her

PhD was The social construction o f ‘Sadomasochism subjugated knowledges and
the broader social meanings o f this bodily practice. Publications include:
‘Deconstructing myths: the social construction of “Sadomasochism” versus
“subjugated knowledges” of practitioners of consensual “SM” ‘, Journal o f
Criminal Justice and Popular Culture, 8 (2) (2001) pp. 66-95 and ‘Researching
consensual “sadomasochism”, perspectives on power, rights and responsibilities-
the case of “disability” 4, Social Policy Review (13) 2001, pp. 89-106. Further
publications in the areas of ‘sexual deviance’, ‘bodily practices’ and/or ‘body
cultures’ as well as social theory are forthcoming.

Gideon Calder is a Senior Lecturer in the School of Social Studies at the

University of Wales, Newport, where he teaches across a range of areas in
philosophy, social theory and applied ethics. Recent publications include Rorty
(Weidenfeld and Nicholson, 2003), and the co-edited Liberalism and Social
Justice: International Perspectives (Ashgate, 2000), along with pieces in Radical
Philosophy, Imprints, Human Affairs, Political Studies and elsewhere. He is
currently reviews editor for the journal Res Publica, and helps to run the Society
for Applied European Thought.

Dr Moira Carmody is a Senior Lecturer in Sociology and Criminology at the

University of Western Sydney, Australia. She has been researching, writing and
developing policy around sexual violence prevention for the last twenty years. Her
most recent publication is ‘Sexual ethics and violence prevention’ in Social and
Legal Studies: An International Journal Vol. 12, No. 2, pp. 199-216. She is
currently interviewing women and men of diverse sexualities about how they
negotiate ethical sex.

Karen Corteen is a Lecturer in Critical Criminology in the Centre for Studies in

Crime and Social Justice at Edge Hill in Ormskirk. She has written book chapters
and articles on children’s rights, sexuality and Sex and Relationship Education and
violence, sexuality and space. Her recently completed PhD was concerned with the
role of Sex and Relationship Education in the sexual and gender ordering of
society. Specific focus was given to role of Section 28 of the Local Government
Act 1988. Currently she is working on a co-edited book entitled Critical
Reflections in Criminology.

Mark Cowling is Reader in Criminology at the University of Teesside. His

previous publications include: Approaches to Marx (ed. with Lawrence Wilde),
Open University Press, Milton Keynes, 1989, The Communist Manifesto: New
X Making Sense of Sexual Consent

Interpretations (edited), Edinburgh University Press, Edinburgh, 1998, Date Rape

and Consent, Ashgate, Aldershot, 1998, Marxism, the Millennium and Beyond
(edited, with Paul Reynolds), Macmillan, 2000, and Marx's Eighteenth Brumaire:
(Post) Modern Interpretations (edited, with James Martin), Pluto Press, 2002.

John Gibbins is a Principal Lecturer in Research Management in the School of

Social Sciences and Law at the University of Teesside, and a member of Wolfson
College Cambridge. He recently published The Politics o f Postmodernity, a book
on value change and political futures with Bo Reimer. He has written extensively
in the fields of political and social theory, but is currently working in the fields of
criminology, social epistemology and the history of university curriculum, focused
at Cambridge University.

Terry P. Humphreys is an Assistant Professor in Psychology at Wilfrid Laurier

University, Waterloo, Ontario, Canada. His current research focuses on young
adults’ attitudes and behaviours with respect to sexual communication, negotiation,
and consent. Terry is a long-standing member of the Annual Conference and
Training Institute on Sexuality at the University of Guelph, in Guelph, Ontario,
Canada. This conference has been recognised as Canada’s leading training and
education forum for sexual health professionals.

Michelle McCarthy is a Senior Lecturer in Learning Disability at the Tizard

Centre, University of Kent, UK. Originally a social worker, she has worked with
people with learning disabilities in a variety of settings. For four years she led a
team which provided a specialist sexuality service to people with learning
disabilities and staff. She has a particular interest in working with women with
learning disabilities on issues of sexual abuse and sexual health. Publications
include Sexuality and Women with Learning Disabilities (1999, Jessica Kingsley);
Sex and the 3R ’s: Rights, Responsibilities and Risks (with D. Thompson, 1998,
Pavilion).

Margaret S. Malloch is a Research Fellow in the Department of Applied Social

Sciences at the University of Stirling. Her research has focused on state responses
to drug users and drug-related crime, and the evaluation of criminal-justice based
initiatives such as the Glasgow and Fife Pilot Drug Courts. Her book Women,
Drugs and Custody was published by Waterside Press in 2000.

Allison Moore is Research and Information Co-ordinator at the Lesbian and Gay
Foundation in Manchester. She is currently completing her PhD on the relationship
between public discourses of sexual citizenship and the ‘lifeworld’ experiences of
people with diverse sexual identities

David Renton is a Research Fellow at the University of Sunderland. He has

written for many different journals and magazines, including Cahiers Leon
Trotsky, Changing English, Contemporary Politics, Fragments, International
 Notes on the Contributors xi

Socialism Journal, Jewish Culture and History, Jewish Socialist, Labour History
Review, Lobster, Race and Class, Searchlight, Socialist Review, Socialist Worker,
Soundings and What Next? His recent books include This Rough Game: Fascism
and Anti-fascism in History (Sutton, 2001), (with James Eaden) A History o f
Communism in Britain (Palgrave, 2001) and Marx 0/2 Globalisation (Lawrence and
Wishart, 2001).

Paul Reynolds is Senior Lecturer in Sociology in the Centre for Studies in the
Social Sciences at Edge Hill College. His research interests include sexual politics,
cultures and ethics, contemporary social theory and Marxist and radical theory and
politics. Recent publications include: (ed. with Mark Cowling): Contemporary
Issues in Law Volume 6 No. 1, 2002 - Special Edition on Rape and Sexual
Consent, including the introduction and ‘Rape, Law and Consent: The Scope and
Limits to Sexual Regulation by Law’; ‘Accounting for Sexuality: the Scope and
Limitations of Census Data on Sexual Identity and Difference’, Radical Statistics
Issue 78 pp. 63-76, 2001; and Mark Cowling and Paul Reynolds (eds) Marxism,
The Millennium and Beyond London: Palgrave, 2000, including the introduction
and ‘Post-Marxism : Radical Political Theory and Practice Beyond Marxism?’. He
is currently preparing a co-authored book with Tony Fagan on The Politics o f
Disability: Identity, Policy, Ideology for Sage and editing a special edition of the
journal Radical Statistics on Sexuality and Radical Research.

Philip N. S. Rumney is Reader in Law at Sheffield Hallam University. He has

written numerous articles on such issues as rape sentencing, rape law reform, juror
education and the rape and sexual assault of males. He is currently researching an
article on false rape allegations, along with a book on the impact and effectiveness
of rape law reform.

Barbara Sullivan is a Senior Lecturer in the School of Political Science and

International Studies, University of Queensland, Australia. She has published on
prostitution and pornography in Australia (The Politics o f Sex, Cambridge
University Press 1997) and is presently undertaking comparative, international
work on prostitution and trafficking (International Feminist Journal o f Politics
March 2003). Her theoretical work has addressed feminist approaches to
prostitution, post-structuralism and liberal-democratic theory.

Martin Morgan-Taylor is a Senior Lecturer in Law at De Montfort University,

Leicester. He has written on aspects of serious sexual offences, particularly male
rape and the use of syndrome evidence in rape trails. He also writes on consumer
protection law.

David Thompson is currently supporting the implementation of England’s new

learning disability policy (Valuing People) with a particular focus on family
support and lecturing at Thames Valley University, London, UK. His main areas of
interest and research have been sexual issues for men with learning disabilities and
how growing older effects the lives of people with learning disabilities.
xii Making Sense of Sexual Consent

Publications include Sex and the 3Rs: Rights, Responsibilities and Risks (with M.
McCarthy, 1998, Pavilion) and Response-Ability: Working with men with learning
disabilities who have difficult or abusive sexual behaviour (with H. Brown, 1998,
Pavilion).

Matthew Waites is Lecturer in Sociology in the School of Social Science and Law
at Sheffield Hallam University, Sheffield, U.K. He has published a variety of book
chapters and journal articles on debates over age of consent laws and lesbian, gay
and bisexual politics. His current research focuses on critiquing proposals for
reform of age of consent laws emerging from the recent Home Office review of
Sex Offences in the U.K. He is co-editor, with Jeffrey Weeks and Janet Holland,
of Sexualities and Society: A Reader (Cambridge: Polity Press, 2003).
 Preface

This book has its roots in discussions and disagreements between the editors in the
late 1990s, triggered by Cowling’s publication of his Date Rape and Consent in
1998. Some of the initial ideas and contestations were played out at the second
conference of the International Association for the Study of Sexuality at
Manchester Metropolitan University in 1999 on a panel with David Archard,
author of Sexual Consent. David’s work deserves special mention for its
sophistication and clarity of thought, and David for his generosity of spirit and
erudite comment - it was regrettable that other commitments caused his departure
from deliberations after 1999.
The editors then decided to co-convene a conference - ‘Making Sense of Sexual
Consent’ at Edge Hill College in June 2000. This was quite a bold decision of the
college. A proposal to hold the conference at the University of Teesside was not
supported on the grounds that a public scandal might ensue. Particular thanks are
due to Professor Alistair McCulloch, Head of Research at Edge Hill College, for
his encouragement and support for the project. The conference involved two days
of intellectually rigorous and extremely pleasurable discussion from which solid
working relationships were born. There proved to be considerable overlap of
concerns between researchers looking at different areas of the issue of consent, and
people who in other contexts might well have been shouting at each other engaged
in sensible discussion. Although our time certainly did not lead to consensus it
helped many of us to clarify our ideas. Another valuable feature of the discussion,
which is reflected in the present collection, is the mix of disciplines present.
Participants’ backgrounds included law, philosophy, politics, criminology,
sociology and psychology. Those working in support of rape victims - whether in
activist or voluntary groups or within the legal system - felt free to discuss issues
with academics and more theoretically minded participants, and debate extended
from heterosexual consent to cover other sexualities and the consent issues they
raised. Thanks to all the participants at the conference for what, for many of the
authors in this volume, was helpful comment and discussion of their papers.
Most of the chapters in this collection have been revised and updated from
papers delivered at the conference. Some other papers were organised into a
special edition of the journal Contemporary Issues in Law, Volume 6 N o.l,
focused on ‘Rape, Law and Sexual Consent’, guest edited by the editors of this
volume. Whilst the tragedy of rape and sexual violence finds echoes in many of the
chapters of this book, the division of papers between those focused on rape and
those more focused on consent seemed to make much sense. The journal was
published in 2002, whilst the book had a slightly longer gestation. Partly, this arose
from one publisher’s rather cavalier attitude to the project, a position that changed
when Ashgate agreed to take on the project. Thanks to Katherine Hodkinson, Anne
xiv Making Sense of Sexual Consent

Keirby and others at Ashgate who moved the project forward and forgave the
editors their delays in handing over the manuscript.
Mark and Paul would like to thank all the contributors to both this collection and
the special edition of Contemporary Issues in Law for their patience and good
humour in moving the project from discussion to publication. They would also like
to thank Allison Moore for her constant support with this project, far above and
beyond her own academic contribution, which stretched from assisting in
organising the 2000 conference to painstakingly reading through the final draft of
the text when she had many other demands upon her time. Mark would particularly
like to thank his wife Amani and children for looking after him during the project
and for picking him up when he is low - in the most literal sense. Paul would like
to thank six people whose willingness to tolerate endless discussion about sexual
consent, often at the expense of their personal time, says as much for their
friendship as it does the fascination of the topic - Alistair McCulloch, Gideon
Calder, Mark McGovern, Allison Moore, Alison Walker and Stephanie Bradley.
 Introduction
Mark Cowling and Paul Reynolds

Just a Simple Matter of Yes or No?

Before the 1990s, students and researchers with an interest in reading about sexual
consent would have struggled to find an academic literature. Except within
feminist critiques of hetero-patriarchal society, and principally the work of radical
feminists like Andrea Dworkin (1974, 1981, 1988) and Catherine MacKinnon
(1989, 1996), the idea of sexual consent did not attract critical interest. The focus
of discussion, understandably, was on the prevalence and incidence of non­
consenting sex and the crisis of rape, forced sex and sexual abuse against women -
both in the public epidemic of sexual violence and abuse and the more insidious
and normalised abuse within private relationships. This focus on non-consent had
the effect of producing diverse and widely varying definitions of consent/non­
consent, used by different researchers with different disciplinary focus, leading to
widely varying arguments and statistical interpretations of rape and sexual violence
and abuse, with much attendant public controversy (for discussion see Cowling,
1998,2003; Muehlenhard, 1992; Johnson and Sigler, 1997).
Sexual consent was articulated through radical feminist or liberal views of rape
and non-consent. To radical feminists, sexual consent was reduced to a marginal
and superficial representation of a ‘sexual contract’ that obscured the exercise of
male power and violence over women, thereby differentiating consent from non­
consent only by degrees of physical or emotional coercion. Outside of that
perspective, the common understanding and legal codification of sexual consent
adopted, by default, a liberal assumption of the sexual contract - free individuals
say yes or no. Using the example of UK law, women were (and still are, to a great
extent) supposed to demonstrate resistance to attempts at forced sex, and their
conduct was the object of close scrutiny, whilst men’s - hetero-patriarchal
constructed - ‘honest belief in consent constituted a defence against rape - the
Morgan Defence (see Jones, 2002 and Hinchliffe, 2002 for contrasting discussion).
The law thus completely failed (and arguably still fails) to address gendered
inequality, and seemed to offer compelling testimony to the radical feminist
critique. It stereotyped women as sexual objects and victims yet also as the
responsible party where questions of sexual consent were concerned, and
effectively repeated much of the character of the sexual abuse of women raped or
forced to have sex - the violation and denigration - in the legal process (see, for
example, Adler, 1987; Brown, Jamieson and Burman, 1993; Cook, 2002;
Reynolds, 2002a; Temkin, 1987). However much recent and current changes in
legislation in the UK will make constructive changes to the legal system and
2 Making Sense of Sexual Consent

process - for example, the Sexual Offences Bill processing through Parliament in
2003 - the radical feminist focus on the structural foundations of the subversion of
women’s consent and the liberal focus on women as free and autonomous
individuals has formed (and continues to form) the boundaries for debate on
understanding sexual consent in the UK, as in other societies and legal systems
(see Home Office, 2003).
This book reflects the development of more sophisticated approaches to sexual
consent within these boundaries in the last decade. This is not to dismiss radical
feminism, which has been persuasive in putting sexual consent and non-consent
within the context of hetero-patriarchal power relations in society, and catalysed
political struggle to change the inadequate legal and political discourses that
applied to questions of consent. Nevertheless, debate has developed that subjects
sexual consent to greater and more direct scrutiny, for a number of reasons. First,
developments within feminism(s) have moderated radical determinations within
greater subject contingencies (this is covered in detail in the chapter by Moore and
Reynolds in this volume). Post-feminists have rejected what they regard as the
radical feminist ‘victimology’ of women’s sexuality and denial of heterosexual
women’s sexual pleasure (notably Roiphe, 1993). At the same time, feminists more
resistant to association with particular schools of feminist thought, such as Sylvia
Walby and Lois Pineau, began to develop more contingent frameworks for feminist
critiques of gendered inequalities (Walby, 1990; Pineau, 1995).
Similarly, women’s groups such as rape crisis campaigning groups and victim
support groups began to generate support for rape to be taken more seriously by
legal and political authorities (and were extremely influential in the shaping of the
current Sexual Offences Bill in the UK). They argued for, with varying degrees of
success, tougher legislation against sex crimes against women with tougher
sanctions and penalties, reduced sentences or sympathetic verdicts for abused
women, and a review of legal system’s treatment of abused women - these
struggles continue (for a good summary of many of the issues see Lees, 1997, and
for two discussions by contributors to the Home Office Review that led to the
current UK Sexual Offences Bill, see Cook, 2002 and Jones, 2002). In doing so,
they pushed the ‘problem’ of sexual non-consent - and so sexual consent - into the
legal and public domains.
Further, for reasons still under debate, the crime of rape began to be subdivided
to recognise different forms of rape with different attendant problems. The
classically stereotyped ‘stranger rape’ was contrasted with ‘acquaintance rape’,
responding to evidence that located the majority of rapes within friendship, work
colleague, broad family or general acquaintance relationships, thus changing
perceptions about the ‘otherness’ of rape. Rapists were not anonymous, but known.
‘Spousal’ or ‘Domestic’ rape highlighted rape within marriage and interpersonal
relationships of some intimacy or duration, and again changed perceptions of rape
as an alien act to rape as something that happened within intimate or close
relationships. This, for example, brought about changes in UK law in 1991 that
recognised rape in marriage. The 1990s got its own form of rape - ‘date rape’ -
that highlighted rape as a feature of the process of negotiating (or failing to
negotiate) the sexual contract of consent within intimate relations.