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Abstract

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.

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