The Case for a Rational Reconstruction of Consent in Criminal Law

DOIhttp://doi.org/10.1111/j.1468-2230.2007.00635.x
Published date01 March 2007
Date01 March 2007
AuthorCatherine Elliott,Claire De Than
The Case for a Rational Reconstruction of Consent in
Criminal Law
Catherine Elliott and Claire deThan
n
This article argues for consistency in crimi nal law and the need for‘rational reconstruction’of the
law where necessary to achieve this.It focuses Parliament’s failure to respect the need for consis-
tency by passing a statutoryde¢nition of consent in the Sexual O¡ences Act 2003 which appears
to applyo nly to sexual o¡ences. As a result, the law on consent r isks being a patchworkof statute
and ad hoc case law, without any overarching principle to deal with new situations and di¡erent
o¡ences.The consequent lack of certainty,accessibility, predictabilitya ndfairness is compared to
the standards of the European Convention on Human Rights. The statutory de¢nition of con-
sent in the context of the sexual o¡ences is assessed critically as a model which could be used in
o¡ences against the person and property o¡ences. The article concludes that until Parliament
responds to the need for certainty and consistency by legislating on consent, there can be no
rational reconstruction of consent under the Sexual O¡ences Act 2003.
INTRODUCTION
Consent, or rather the absence thereof, is an element in many crimes of di¡erent
natures, and the de¢nition usedfor such a keyconcept varies between and within
these categories of o¡ence.The goal of consistency through rational reconstruc-
tion will be argued to be a legitimate goal to be pursued by criminal law aca-
demics.
1
The passing of a statutory de¢nition of consent for the sexual o¡ences
without any equivalent provision for consent in non-sexual o¡ences risks the
development of an inconsistent approach to the issue across the whole of the
criminal law.This article will not examine the merits and disadvantages of incor-
porating the concept of consent within the de¢nition of rape, a subject that has
alreadybeen the focus of considerable academic debate.
2
Instead, having accepted
that consent remains central tothis crime, it questions whether there should be a
statutory de¢nition of consent which applies purely to the sexual o¡ences, when
the concept of consent arises across the whole of criminal law.
CONSISTENCY: A LEGITIMATE GOAL
We seek to argue that it is an established part of ourlegal culture for academics to
seek to achieve consistency in the interpretation of legal concepts. It is only
n
Senior Lecturers, City University, London.The authors would like to thank Kit Elliott, Margaret
Halliwell and the MLR’stwo anonymous reviewers for their helpful comments.
1 N. MacCormick,‘ReconstructionafterDeconstruction:A Responseto CLS’(1990) 10OJLS539,556.
2 D.Dripps,‘Fora Negative Normative Modelof Consent, with a Comment on Preference ^ Skepti-
cism’ (1992) 2 Legal Theory 113. ; V. Tad ro s, ‘Rap e Wit ho ut C on se nt ’ (2 00 6) 2 6 OJ LS 515. ; idem,‘No
Consent: A Historical Critique of the Actus Reus of Rape’ (1999) 3 Edinburgh L Rev317; R.West,
‘Legitimating theIllegitimate:A Commenton Beyond Rape’ (1993)93 ColumbiaL Rev1442,1448.
r2007 The Authors.Journal Compilation r2007 The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(2) MLR 225^249
because there is some consistency in interpretation of legal concepts that we can
e¡ectively talk about a criminal legal system ^ if the rules of law ¢tted together
randomly and bore no relationship to each other th en there wouldb e no system at
all. The criminal legal system bene¢ts from its coherent evolution, rather than
allowing concepts and o¡ences to develop in isolation.
3
Neil MacCormick has
argued persuasively that the task of a legal scholar is ‘rational reconstruction’.
4
Thus, the legal academic should dismantle the wide range of legal sources:
to reconstruct them in away that makes them comprehensiblebecause they are now
shown as parts of a well ordered though complex whole.This requires explanatory
principles establish ing criteria of what cou nts as well ordered and rational . . . Of
course, it is an intellectual process, involving a new imagining and describing of
the found order . .. [T]here has to be some discrimination between the parts that
belong in the coherent whole and the mistakes or anomalies that do not ¢t and
ought to be discarded orabandoned or at least revised.
5
In the legalcontext, the e¡ortof rational reconstruction pushes thelawyer to seek
out and reinforce consistencies across legal concepts. The judges form a funda-
mental part of this process, as the foundations of our legal system are built
through a unifying process: the application of the rules of judicial precedent.
Under these rules, like cases should be treated alike (assuming the precedent to
have been correctlydecided) so that the courts’decisions are consistent to achieve
the goals of predictability and fairness.
In the academic ¢eld, this process of rational reconstructioncan be traced back
to the work of Blackstone, whose Commentaries on the Laws of England was pub-
lished in 1765^9.
6
Blackstone methodicallyconstructed a coherent analysis of the
criminal lawof the day. The search for consistency of approach is re£ected inthe
ambition of many criminal law scholars to identify and develop the‘general part
of the criminal law, a project undertaken notably by Glanville Williams.
7
The
general part of a system ofcriminal law aims to contain those general principles
of criminal liability that apply in most criminal o¡ences.
8
The American aca-
demic, Jerome Hall has described the evolution of criminal law in the following
terms:
Progress towards systematization resulted from discovering that crimes can be
decomposed, i.e. analysed into several elementary ‘material’ (essential) ideas; then,
3 V.Tadros,‘The System of the Criminal Law’ (2002) 22 LS 448, 449.
4 n 1 above,556.
5 n 1 above,556. For a di¡erent view, see L.Wittgenstein, PhilosophicalInvestigations (Oxford: Black-
well,3rd ed, 1999), who considered that the mean ing of concepts was inextricably linked with the
practices of which they are a part. As a result, no genuine enlightenment could be achieved by
breaking a conceptdown into its elements for detailed analysis. See on this subject N.Lacey,‘Con-
tingency, Coherence, and Conceptualism’in A. Du¡ (ed), Philosophy and the Criminal Law (Cam-
bridge: CambridgeUP,1998)15.
6 W. Blackstone, Commentaries on the Lawsof England (1765^9) volsI a ndIV, (Chicago: University of
Chicago Press,1979).
7 G.Williams, Criminal Law:The General Part (London: Stevens, 1961). See also J. Gardner,‘On the
General Part of the Criminal Law’in Du¡ (ed), n 5 above, 205.
8 A. Du¡,‘Introduction’ in Du¡ (ed),ib id 2.
Consent in Criminal Law
226 r2007 The Authors.Journal Compilation r2007 The Modern Law Review Limited.
(2007) 70(2)MLR 225^249

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