Constructing Consent: Legislating Freedom and Legitimating Constraint in the Expression of Sexual Autonomy

In the first section, the nature and parameters of the conventional understanding of consent will be examined in more detail and the contemporary challenges that have been lodged against it – particularly from those influenced by structural, post-structural, and communitarian analyses – will be considered. With the terrain of these debates on consent – and related concepts such as autonomy, agency, and self-determination – in place, the second section of this article will focus specifically upon their implications in the context of sexual consent in general, and women’s sexual consent in particular. It will outline the development of the Sexual Offences Act 2003 in England and Wales, and will discuss some of the merits and demerits of the approach adopted towards rape as a criminal offence therein. Having done so, discussion in the final part will examine a number of the more fundamental difficulties posed by this legislation’s instigation of a consent threshold that centers upon such theoretically contested, and malleable, concepts as ‘freedom,’ ‘capacity,’ and ‘reasonableness.’ Juxtaposing the presumptions that often lie behind these concepts in conventional liberal accounts with the messy and multi-faceted realities of women’s daily lives, this section will examine the adequacy of the legal response in terms of its ability to both reflect and respond to the experiential patterns of (hetero)sexual initiative

Doing Due Diligence on Gender? A Reflection on Davina Cooper’s ‘Taking Responsibility for Gender’

Commentary on Cooper.&nbsp

Seeking campus justice:Challenging the ‘criminal justice drift’ in United Kingdom university responses to student sexual violence and misconduct

In recent years, growing concerns have been expressed – including in the press and social media – over the apparently inadequate responses of many United Kingdom (UK) universities to complaints of student sexual violence and misconduct (SSVM). In this article, we underscore universities’ legal, ethical, and civic responsibilities to students, which require them to implement effective regimes for the prevention and sanctioning of such behaviour. We suggest, however, that current responses are moving in the wrong direction. More specifically, universities are too often turning (back) towards adversarial and procedural paradigms, developed within the criminal justice system, where the persistence of a ‘justice gap’ in cases of rape and sexual assault has been well documented. We argue that this ‘criminal justice drift’ may frustrate the possibility for more tailored, transformative, and trauma-informed processes for addressing SSVM within higher education institutions

Seeing Things Differently: Art, Law and Justice in the Scottish Feminist Judgments Project

This paper illustrates how turning to art rather than focusing solely on legal reform can form part of an alternative response to gender inequality that allows for deeper understandings of social (in)justice. We show how the Scottish Feminist Judgments Project – a collaborative endeavour by legal academics, practising lawyers, judges, artistic contributors and representatives from the third sector – can offer those who engage with our art the experience of hearing and seeing law in different ways. More specifically, we explore how art can open law up to scrutiny, render vivid the impact of legal decisions, and create richer and more democratic communities of understanding. At the same time, by discussing  knowledge differentials and the quandaries of creating art ethically, we also highlight some of the challenges involved in engaging in artistic-legal collaboration

The ideal and the real - at the boundaries of the possibility of female consent

Abstract available : p.3-1

Data, disclosure and duties: balancing privacy and safeguarding in the context of UK university student sexual misconduct complaints

The past decade has seen a marked shift in the regulatory landscape of UK higher education. Institutions are increasingly assuming responsibility for preventing campus sexual misconduct, and are responding to its occurrence through – amongst other things – codes of (mis)conduct, consent and/or active bystander training, and improved safety and security measures. They are also required to support victim-survivors in continuing with their education, and to implement fair and robust procedures through which complaints of sexual misconduct are investigated, with sanctions available that respond proportionately to the seriousness of the behaviour and its harms. This paper examines the challenges and prospects for the success of university disciplinary processes for sexual misconduct. It focuses in particular on how to balance the potentially conflicting rights to privacy held by reporting and responding parties within proceedings, while respecting parties’ rights to equality of access to education, protection from degrading treatment, due process, and the interests of the wider campus community. More specifically, we explore three key moments where private data is engaged: (1) in the fact and details of the complaint itself; (2) in information about the parties or circumstances of the complaint that arise during the process of an investigation and/or resultant university disciplinary process; and (3) in the retention and disclosure (to reporting parties or the university community) of information regarding the outcomes of, and sanctions applied as part of, a disciplinary process. We consider whether current data protection processes – and their interpretation – are compatible with trauma-informed practice and a wider commitment to safety, equality and dignity, and reflect on the ramifications for all parties where that balance between rights or interests is not struck

Data, disclosure and duties:Balancing privacy and safeguarding in the context of UK university student sexual misconduct complaints

The past decade has seen a marked shift in the regulatory landscape of UK higher education. Institutions are increasingly assuming responsibility for preventing campus sexual misconduct, and are responding to its occurrence through – amongst other things - codes of (mis)conduct, consent and / or active bystander training, and improved safety and security measures. They are also required to support victim-survivors in continuing with their education, and to implement fair and robust procedures through which complaints of sexual misconduct are investigated, with sanctions available that respond proportionately to the seriousness of the behaviour and its harms. This article examines the challenges and prospects for the success of university disciplinary processes for sexual misconduct. It focuses in particular on how to balance the potentially conflicting rights to privacy held by reporting and responding parties within proceedings, while respecting parties’ rights to equality of access to education, protection from degrading treatment, due process, and the interests of the wider campus community. More specifically, we explore three key moments where private data is engaged: (1) in the fact and details of the complaint itself; (2) in information about the parties or circumstances of the complaint that arise during the process of an investigation and / or resultant university disciplinary process; and (3) in the retention and disclosure (to reporting parties or the university community) of information regarding the outcomes of, and sanctions applied as part of, a disciplinary process. We consider whether current data protection processes – and their interpretation - are compatible with trauma-informed practice and a wider commitment to safety, equality and dignity, and reflect on the ramifications for all parties where that balance between rights or interests is not struck

The provenance of what is proven: exploring (mock) jury deliberation in Scottish rape trials

This article presents findings from the largest research study of the nature of mock jury deliberations in rape cases undertaken in the UK to date – and the first such study to be undertaken in the Scottish context. The study found considerable evidence of the expression of problematic attitudes towards rape complainers. These included the belief that a ‘real’ rape victim would have extensive external and internal injuries and would resist attack by inflicting injuries on her attacker and shouting for help, that even a short delay in reporting a rape is suspicious, and that false allegations of rape are commonly made by women and difficult to refute. There was, however, also evidence that some jurors were willing to challenge these attitudes and that they often relied – explicitly or implicitly – on third‐sector campaigns to do so. The article concludes by drawing out the implications of this research for policy and practice