HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.
![handle is hein.peggy/fltvthy0001 and id is 1 raw text is:
From Individual Responsibility, to State Responsibility: Vulnerability as a New Foundation for
Sexual Offences
Sorcha McCormack
Note from author: I have left comments and notes highlighted where I would particularly be
interested in comments/advice and feedback.
The area of sexual assault law reform has been dominated by the theory of autonomy. Reforms have
been repeatedly suggested and implemented based on these overarching notions which are
underpinned by the 'liberal subject'.' Despite legislative reforms, there still remains a substantial
justice gap as the law fails to adequately and equally protect its subjects. Reinventing and rewording
of the law, tends to ultimately produce similar outcomes when such revisions are based on the same
theory of autonomy. This liberal subject pursues a distinctive line dividing the public and private
sphere.2 In particular, the liberal subject is concerned with the State's interference in the private
realm which 'inhibits' their exercise of free choice. The State uses these apparent benefits of
autonomy, coupled with the 'negative' associations with paternalism, as a mask for their
responsibilities and to instead 'individually responsbilise' its subjects to avoid harm.
Considering the current law on sexual offences is based on a foundation of autonomy and these core
concepts, the legislative framework places an excessive focus on the autonomous being, the self-
determining subject who is capable of rational decision making in every situational circumstance.
This 'ideal subject' causes significant disarray in the application of the law, particularly in relation to
sexual offences. A central focus on autonomy, and its limb of consent, leads us to place a
disproportionate focus upon the complainant's behaviour, which carries an expectation of individual
responsibility to avoid harm, whilst endorsing victim blame; this is evident in many juror studies, and
in some judicial commentary.3 This expectation distracts from the exploitation of the vulnerability of
the subject, instead the law in essence expects one to self-protect and to be 'invulnerable'.
Despite legislative frameworks designed to apparently protect those who 'cannot' be autonomous,
namely those who are 'incapacitated', many issues remain. In particular, that the current legislative
provisions afford different protections to those based on how their incapacitation arose.4 This in
turn again encourages an excessive focus on the complainant's behaviour in becoming incapacitated
rather than on their heightened vulnerability and need for State response. Similarly, the all or
nothing understanding of capacity and individuals as autonomous beings, creates a grey area where
1 A subject based on the freedom of choice and autonomy
2 Martha Albertson Fineman, 'Cracking the Foundational Myth: Independence, Autonomy and Self Sufficiency'
[2000] 13(8) Journal of Gender, Social Policy and the Law 13- 29, 15.
3 Eg. R v Bree [2007] All ER 412; R v Gardner [2005] EWCA 1399; R v Dougal Swansea Crown Court [2005] (unreported);
Clare Gunby & Anna Carline & Caryl Beynon, 'Regretting it After? Focus Group Perspectives on Alcohol Consumption, non-
consensual sex and false allegations of rape' [2012] 22(1) Social & Legal Studies 87- 106; Emily Finch. & Vanessa Munro,
'The Demon Drink and the Demonized Woman: Socio Sexual Stereotypes and Responsibility Attribution in Rape trials
involving intoxicants'. (2007) 16 (4) Socio Legal Studies 591-614; Jennifer Temkin and Barbara Krah6, Sexual Assault and the
Justice Gap:A question of Attitude (Hart publishing, 2008) 139; Nicole Westmarland & Laura Graham, 'The promotion and
resistance of rape myths in an internet discussion forum' [2010] 1(2) Journal of Social Criminology 80-104; Louise Ellison &
Vanessa E. Munro, 'A stranger in the Bushes, or an Elephant in the Room? Critical reflections upon received rape myth
wisdom in the context of a mock jury study', Fall [2010] 13(4) New Criminal Law Review 781-801
4 s.30 Sexual Offences Act [2003] covers those with a mental disorder, s75(2)(d) Sexual Offences Act[2003]
covers unconsciousness, s75(2)(f) Sexual Offences Act [2003] protects those who have been involuntarily
intoxicated.](ViewImageLocal?handle=hein.peggy/fltvthy0001&div=1&collection=&method=preview&ext=.png&size=3)