State control of consensual sexual behaviour through the Sexual Offences Act 2003

The passage of the Sexual Offences Act 2003 and the Sex Offences Review which proceeded it was saturated with the rhetoric of autonomy, with consent treated as the hallmark of autonomous action. As a result, ss1-4 of the Act criminalise a range of non-consensual sexual activities. However, the Act contains numerous other offences which do not turn on the presence or absence or consent, with the result that ostensibly consensual sexual behaviour is criminalised in a range of circumstances. These offences centre more objectivist criteria including the identity of the victim (children and mentally disordered adults) and the exchange of money for sexual services, and are justified by claims of protecting the vulnerable. Despite promises of a new approach to vulnerability that would move away from the status-based offences of the previous law, the overarching approach of the 2003 Act remains to categorise specific groups of people as ‘vulnerable’, and to subject their sexual behaviour to separate regimes of state scrutiny, protection and control. This chapter explores the impacts of state intrusion into these forms of ostensibly consensual sexual behaviour at two levels: the material consequences of various specific offences, and the overall effect of arranging sexual offences between universal offences of non-consensual behaviour and specific offences of exploiting various forms of vulnerability. It argues that this framework reflects an underlying notion of liberal subjecthood that is incompatible with the condition of vulnerability (Fineman 2013). It calls for a re-evaluation of the central principles of sexual offences in ways that centralise rather than marginalise the experiences of vulnerable victims, as one piece of a larger project of reimagining the legal subject