How consent is constructed in case reports of rape, an analysis of judicial discourse

In a jurisdiction where the definition of rape is based on consent, how consent is understood and assessed is of paramount importance. While the concept of consent is fundamental to the definition and proof of rape, there is considerable disagreement about the nature of consent, how it is conceptualised and determined in different circumstances. My study examines the construction of consent in case reports of rape by applying a methodology based on discourse analysis. By examining case reports between 2002 and 2015, I demonstrate the diversity and evolution of judicial discourse and the impact of the Sexual Offences (S) Act 2009 on judicial assessment of consent. The study focuses on judicial discourse rather than judicial doctrine. This allows me to consider how consent is established through judicial handling of the facts as well as the application of law. By reading across the cases, I identify and examine four key aspects of judicial discourse that demonstrate how consent is constructed: the relevance of force in determining consent; how particular patterns of behaviour are understood in judicial discourse; the value attached to the complainer's response to rape and her expression of distress; how consent is understood in circumstances where the complainer is asleep or in a borderline state of consciousness. My study reveals a complex picture of an evolving discourse and heterogeneous ideas about consent. While there is greater fluidity and richness in judicial thinking about consent following the 2009 Act, entrenched ideas about gender, intoxication and sexual availability persist. I also identify new problems emerging in the wake of the 2009 Act. By advancing our understanding of judicial decision-making about consent and the development of judicial discourse in the context of the 2009 Act, the study makes an original contribution to legal scholarship in the area of sexual consent and rape.In a jurisdiction where the definition of rape is based on consent, how consent is understood and assessed is of paramount importance. While the concept of consent is fundamental to the definition and proof of rape, there is considerable disagreement about the nature of consent, how it is conceptualised and determined in different circumstances. My study examines the construction of consent in case reports of rape by applying a methodology based on discourse analysis. By examining case reports between 2002 and 2015, I demonstrate the diversity and evolution of judicial discourse and the impact of the Sexual Offences (S) Act 2009 on judicial assessment of consent. The study focuses on judicial discourse rather than judicial doctrine. This allows me to consider how consent is established through judicial handling of the facts as well as the application of law. By reading across the cases, I identify and examine four key aspects of judicial discourse that demonstrate how consent is constructed: the relevance of force in determining consent; how particular patterns of behaviour are understood in judicial discourse; the value attached to the complainer's response to rape and her expression of distress; how consent is understood in circumstances where the complainer is asleep or in a borderline state of consciousness. My study reveals a complex picture of an evolving discourse and heterogeneous ideas about consent. While there is greater fluidity and richness in judicial thinking about consent following the 2009 Act, entrenched ideas about gender, intoxication and sexual availability persist. I also identify new problems emerging in the wake of the 2009 Act. By advancing our understanding of judicial decision-making about consent and the development of judicial discourse in the context of the 2009 Act, the study makes an original contribution to legal scholarship in the area of sexual consent and rape