‘No Means No’, But Where's the Force? Addressing the Challenges of Formally Recognising Non-violent Sexual Coercion as a Serious Criminal Offence
| Author | Susan Leahy |
| DOI | 10.1350/jcla.2014.78.4.930 |
| Published date | 01 August 2014 |
| Date | 01 August 2014 |
| Subject Matter | Articles |
‘No Means No’, But Where’s the
Force? Addressing the Challenges
of Formally Recognising
Non-violent Sexual Coercion as a
Serious Criminal Offence
Susan Leahy*
Abstract Although it is no longer necessary to show that force was used in
order to prove that sexual activity was non-consensual, it remains difcult
to prove that rape has occurred where the complainant has been threatened
with an adverse consequence other than physical injury. Although, in
principle, any threat (e.g. that of job loss or revelation of a secret) is sufcient
to vitiate consent to sexual activity, in practice it remains difcult to prove
that a criminal wrong has occurred in such cases. This article argues that this
gap between principle and practice is the result of the vague approach to
sexual coercion in the Sexual Offences Act 2003, along with a continuing
societal preoccupation with force as a requirement for ‘real rape’. In light of
these difculties, it is argued that consideration should be given to introducing
a specic offence of obtaining sex by threats to ensure that non-violent
sexual coercion is recognised as criminal harm.
Keywords Rape; Consent; Threats; Coercion; Reform
Historically, in order to prove an allegation of rape it was necessary to
show that sexual intercourse had been obtained by force and that the
complainant had resisted the efforts of her attacker to the utmost. The
requirements of force and resistance have long since been replaced by the
consent standard with common law jurisdictions now typically dening
rape as sexual intercourse without consent. However, as Munro points
out, despite the formal abolition of the force requirement, in practice
evidence of physical injury or at least the threat thereof (for example, use
of a weapon, words of violence) makes a conviction for rape more likely
than when these features are absent.1In her view, the use of force by the
defendant,
... together with physical resistance and the suffering of non-trivial injuries by
the victim, remain crucial evidential preoccupations, particularly in scenarios of
* BCL LLM PhD, Lecturer in Law, University of Limerick; e-mail: Susan.Leahy@ul.ie. The
author wishes to acknowledge Professor Shane Kilcommins, University of Limerick, and
Dr Mary Donnelly, University College Cork, for helpful commentary on earlier drafts of
this work. The views expressed and any errors are the responsibility of the author.
1V. E. Munro, ‘An Unholy Trinity? Non-Consent, Coercion and Exploitation in
Contemporary Legal Responses to Sexual Violence in England and Wales’ (2010) 63
Current Legal Problems 45, 54.
The Journal of Criminal Law (2014) 78 JCL 309–325 309
doi:10.1350/jcla.2014.78.4.930
The Journal of Criminal Law
310
acquaintance or intimate rape allegations, to the extent that securing a
conviction in their absence is often difcult, if not impossible.2
Thus, a gap between principle and practice seems to have emerged in this
area of rape law. In principle, where a complainant submits to sexual
intercourse as a result of a threat of non-violent harm such as job loss, this
should be sufcient for a charge of rape to be brought. In practice, it remains
difcult for such cases to result in a conviction. Consequently, the absence
of force and resistance in many experiences of rape ‘ensures that a large
share of sexual violence perpetrated upon women is never brought to the
attention of, or is summarily dismissed by, the criminal justice system’.3
This article begins by highlighting the harm of non-violent sexual
coercion. The current English law relating to sexual coercion is then
examined with a view to considering, from a purely legal perspective, why
it is difcult to obtain a conviction for sexual coercion which does not
involve physical violence or threats thereof. Although it is argued that the
current law is problematic, it is also posited that societal attitudes about
rape are inuential in the difculties of recognising sexual coercion short
of physical violence as a serious criminal offence. These attitudes are
explored in order to ascertain the types of intervention which might make
it more likely that non-violent sexual coercion would be recognised as a
criminal harm. The article concludes by exploring the benets of the
introduction of a specic offence of obtaining sexual activity by threats.
Understanding the harm of non-violent sexual coercion
At a principled level, it indisputable that sexual intercourse without
consent is wrongful and should be recognised as rape. For consent to work
its ‘moral magic’4and separate sexual intercourse from a wrongful criminal
act, it must be freely given by an individual with sufcient legal capacity
to exercise sexual choice. For the purposes of this article, the requirement
that consent must be freely given must be assessed with reference to the
absence of coercion.5To contextualise the discussion of sexual coercion, it
is necessary to examine the spectrum of behaviour which could interfere
with an individual’s ability to freely choose to engage in sexual activity.
The clearest case of sexual coercion is where physical violence or threats
thereof are used. If a woman is physically held down, restrained, and
2 Above n. 1 at 54. Munro cites the following as support for her view: J. Du Mont et al.,
‘The Role of Real Rape and Real Victim Stereotypes in the Police Reporting Practices of
Sexually Assaulted Women’ (2003) 9 Violence Against Women 467; J. Brown et al.,
‘Characteristics Associated with Rape Attrition and the Role Played by Scepticism or
Legal Rationality by Investigators and Prosecutors’ (2007) 13 Psychology, Crime and Law
355; L. Ellison and V. E. Munro, ‘Reacting to Rape: Exploring Mock Jurors’ Assessments
of Complainant Credibility’ (2009) 49 British Journal of Criminology 202; J. Temkin and
B. Krahé, Sexual Assault and the Justice Gap: A Question of Attitude (Hart Publishing: Oxford,
2008).
3V. E. Munro, ‘From Consent to Coercion: Evaluating International and Domestic
Frameworks for the Criminalization of Rape’ in C. McGlynn and V.E. Munro (eds),
Rethinking Rape Law: International and Comparative Perspectives (Oxfordshire: Routledge,
2011) 20.
4 H. Hurd, ‘The Moral Magic of Consent’ (1996) 2 LegalTheory 121,123.
5 This requirement could also be assessed with reference to deception.
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