Legalities of consent and its implications
Earlier this week in the Supreme Court of ACT, Australia, Livas has pleaded guilty for having sexual intercourse with a sex-worker without consent in 2010. Specifically, the man scammed the sex-worker by having sex with her without making payment of $850 for her services - the envelope which the man claimed had the money inside turned out to contain a brown paper bag and a card with a flower on it, as mentioned in this article.
There is no doubt that there is a case of fraud here, and therefore the man should be appropriately charged and the sex-worker see justice. However, the guilty plea has remained to be a contentious topic which can very well establish legal precedence and influence the public's opinion about what sexual consent is. The affirmative point of view that the fraudulent nature in which the intercourse took place renders it non-consensual is concerning, and can leave a lot of people wondering if ethics were forgotten about somewhere along the line.
Consent: what is it really?
Let's ponder about the concept and role of (sexual) consent for a moment. Conceptually, consent is required for two (or more) parties to engage in sexual activity in a healthy and safe environment in which everyone can feel comfortable and have autonomy in. A situation in which consent is not obtained will leave one or more participants fearful, distressed, violated, traumatised or even injured from the sexual acts that occur while consent is not obtained. Any sexual acts that are performed by person A without consent from person B would (if reported) make person A (legally, not necessarily ethically) guilty of sexual assault or rape.
Scope of consent
For consent to occur, there are a number of criteria that need to be satisfied to ensure such a healthy and safe environment. They are:
- Parties not be physically coerced (by hitting, holding down, trapping, etc)
- Parties not be participating under duress (threats to safety, extortion, etc)
- Parties must have the mental capacity to consent (not majorly impaired by drugs and alcohol, mentally impaired, etc)
- Parties must be willing participants
- Parties must be of legal age
- Parties must be able to withdraw consent at any time
- Parties not to be considered consenting purely by association (romantic partner or having past sexual experiences with each other)
While the above list of criteria is not exhaustive, it's important to remember consent as a concept as "that ensures the health, safety and autonomy of everyone engaging in sexual acts", and therefore is not limitless in its scope. Because consent as explained above is concerned with the health, safety and autonomy of individuals surrounding the actual occasion in which the sexual activity occurs, consent cannot be concerned with changes in circumstances (or newly gained knowledge of circumstances) that occur in the future which don't nagatively affect the outcome of the health, safety and autonomy of anyone who engaged in the prior sexual activities.
For this reason, deceptive behaviour such as fraud, theft or lying should not render the consent to be no longer valid, but should instead be treated as a separate incident and pursuable by law based on the act committed. To the case with Livas scamming the sex-worker, this is no different than a mechanic servicing a person's car, and then the person taking off in the car without paying the mechanic. The knowledge that you've been victim of fraud as a sex-worker, while unpleasant, doesn't magically make you sexually violated since any violation was not felt up until the realisation that the sex-worker was short-changed. It's financial fraud, but not sexual violation, and certainly not a violation that would make anyone guilty of rape or sexual assault.
Examining the scope creep
Let's apply the set of ethical view-points presented above, and compare them with the view-point that informed consent - which the sex-worker would not have consented to sex had she known that she is just about to be scammed - must be made before sexual activity to occur to ensure sexual violation doesn't occur.
Suppose a man is quoted $500 for sex, the man accepts, and the sex-worker carries out with the service. Afterwards, the sex-worker then tells the man that the bill is $600, stating that the quote did not include GST and room charge. The man refuses to pay the extra amount, pays the original $500 and runs off.
Let's then assume for some reason, the man is found guilty of fraud for not paying the full amount, will the man then also be guilty of having sex without consent, based on the supposed rationale that the sex-worker wouldn't have performed her services had she known that she'll be short-changed $100?
After thinking about this derivative scenario, it raises some questions - does this so called "sexual violation" actually exist in this situation given that the criteria of consent as described above were met in the sexual activity that took place? How do we distinguish between the violation experienced when we are scammed and sexual violation? Can these feelings of violation be soothed by receiving justice and compensation?
There are some things that we do know:
- Any theoretically potential sexual violation would not be experienced by the sex-worker if the sex-worker was properly paid for her services
- The sex-worker didn't feel any sense of violation until she opened the envelope to see that no money was inside
- Any events that happen in the future don't affect the momentary experiences in the past
Extending from the last point above, it's possible to have feelings of for example "I was living a lie" which may influence how you view your past when looking at things with hindsight. However, it doesn't change the fact that in that moment of time, you didn't actually experience such pain; in fact it's possible that you felt the polar opposite of your current morbidity status.
So, to claim that sexual violation was experienced by the sex-worker would be to claim that firstly the sex-worker was happy to exchange her services to her client, but upon realisation that she was scammed, that this knowledge changed her actual (and in that moment, past) experience with her client into an unsafe, traumatic, damaging and violating experience. This simply is not true.
If the whole legal system were to behave in a way that acknowledges the existence of retro-causality like this, it would really open a monstrously large can of worms which we could look at any incident and determine people's guilt based on hindsight regret. I don't imagine a man would have sex with a woman if he had advanced knowledge that the woman would make a false rape accusation against him. If such situation actually came to reality, should the man really be able to claim that the woman had sex with him without his consent? This really sets a dangerous precedence when you consider the infinite number of possible scenarios out there that can be skewed to be amplified with a rape or sexual assault charge based on this retro-causality reasoning.
That said, according to the same article, the tight consent laws have in-built exclusions, which the article says:
However, any laws with arbitrary exclusions like this are quite dangerous as they can easily be discarded by other jurisdictions or discarded in the future due to their apparent lack of strong rationale behind the exclusions and the superseding law.
What should happen
It's very clear that Livas committed fraud against the sex-worker. However, it's very implausible to say that consent was breached because of the fraud occurring. The sex-worker should therefore be compensated for her unpaid services, damages associated with the fraud (such as any financial hardship, complications and stress as a result of the lack of money), and nominal compensation of her time from pursuing her case. However, whilst the man should be guilty of fraud, he should not have any sex-related crimes next to his name or any of the consequences that may come along with that (such as being registered on the sex offender's list).
Let's make no mistake, this is not about defending a fraudster, but advocating balance within the law and that it's closely in parallel with moral ethics. The law should not be giving special treatment to any group (or punishing anyone who mistreats people in this group more harshly) because of some certain circumstances (like working in a particular profession).
In summary, punish this man for the actual crime(s) he committed. Nothing more, nothing less.
Image by Unknown. Source: The Onion