“Her definition of rape is not important.” Disparate narratives of consent in multi-handed Child Sexual Exploitation trials
Dr Natasha Carver, University of Bristol
Online
The issue of consent continues to be a thorn in reforming justice outcomes in sexual assault cases. Capacity to consent and the extent to which the behaviour of the complainant should be disclosed to the jury or taken into account in determining credibility are seen as key issues in closing the ‘justice gap’ between the number of reports of sexual offences and the number of successful prosecutions. Feminist activists argue that all too often, despite major societal shifts in conceptualising rape and sexual assault and despite extensive reform of court process and legislation, the behaviour and embodied characteristics of female complainants are still subject to prurient and moralistic scrutiny. Legal practitioners, on the other hand, worry that the UK’s adversarial system requires such scrutiny for justice to be served. Academics, meanwhile, have long-since observed that determining consent is not as clear-cut as public, media and politicians would like to think, and is produced relationally through and within intersectional structural inequalities and socio-cultural norms. Based on a two-year ethnography in a city in England accompanying defendants and their family members through the court process alongside analysis of closing speech transcripts in four multi-handed prosecutions for group-based Child Sexual Exploitation (involving 27 defendants and 16 complainants), this paper examines contested constructions of consent. I find in these cases, there is a conceptual gap in understandings of consent, not as might be expected along gendered lines between (female) complainants and (male) defendants, but rather across class and age boundaries between complainants/defendants and legal practitioners. The behaviour and language of both complainants and defendants are often subject to shaming in these contestations by prosecution and defence barristers alike, who rely on embodied characteristics, past behaviour and conduct in court to undermine the narrative credibility of the witnesses.
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