New book release - Vulnerability and Sexual Assault Law: The Inadequacy of the Autonomy-based Approach

In this interview with author Sorcha Mc Cormack, we hear about the theories underpinning her book, as well as the lessons that can be learnt about sexual assault law.

What first inspired your focus in this area?

Before I embarked upon my PhD journey, I qualified as a barrister. During my studies I soon realised that changing the law and the injustices against women and girls was going to be particularly difficult on a case-by case basis. Even more so, I was simply horrified by the statistics and realities of rape and sexual assault trials - I knew I wanted to delve into this deeper. When I began my PhD with Professor Clare McGlyn, I would vehemently argue 'this is wrong' and Clare would encouragingly say, ‘yes you're right – but why?’

How did you come across vulnerability theory?

As a Research Assistant at the School of Law, I was introduced to Professor Martha Fineman and her research. I remember so vividly agreeing with her angles on why the autonomy-based approach of the law was insufficient and inadequate. I could then draw on this perspective for my research into law reform of sexual violence. For my book though, I noted the limitations of some of Martha Fineman’s vulnerability theory and looked elsewhere for perspectives that would complement this approach. I came across Erin Gilson's work who I rely heavily on and would encourage others to engage with.

How would you summarise the book's central argument?

Central to the book is the argument that we are not independent sufficient individuals, rather we are relational vulnerable beings, and we need law that reflects that. Considering this, we need to move away from individual responsibility and move towards a relational responsibility to respect each other’s autonomy and to not exploit vulnerability.

You argue that sexual assault law is built upon an autonomy-based model. What does that mean in practice and why do you believe it is inadequate for addressing sexual violence?

The legal subject (the person imagined that the law is based on) is a person who is independent, rational and capable of looking after themselves; they are autonomous. But what comes with a subject who is capable and independent is the responsibility to act appropriately and therefore take responsibility for themselves. The problem, therefore, is we tell people you can just say no to sex, you can just wear less seductive clothing, and you can just make sure you don’t get drunk. That of course is problematic for many reasons. You may do all of the above (and more) and still be sexually assaulted. This narrative of the ideal victim is harmful and does little to reflect the realties of the majority of rape and sexual violence.

Your book examines intoxication and consent in detail. What are the key problems with current legal approaches in this area?

Intoxication and consent highlight the key failings of the autonomy-based approach and the focus on consent. At a starting point, it is noteworthy that there is a separate section within the legislation that contains a list of what are informally known as the rebuttable presumptions. Within that list, there are a range of circumstances including whether someone is illegally detained, physically disabled, and asleep. Crucially though, it includes complainants who are involuntarily intoxicated, and do not have the capacity to consent. There is however, no reference to voluntarily intoxicated complainants, that is despite the fact both individuals would be in the same state. It would seem the more you are apparently to blame for contributing to your ‘vulnerable’ state, the less protection you are owed.

I call this the hierarchy of protections, and this distinction contributes to my core argument of the problematic focus on autonomy and consent.

How might your work influence debates about violence against women and girls?

In my final chapters I discuss practical legal reform. I ultimately conclude that the law is excessively focused on the victim/survivor (and what they did or said) and not the perpetrator’s actions of responsibility. I suggest that the law be reformed so that more emphasis is placed on a defendant's reasonableness of his belief in consent. I have suggested that there are certain circumstances where a defendant would know (or ought to know) that the victim was experiencing their vulnerability so much so at that time that they ought to have taken additional steps to ensure they respected their autonomy and acted reasonably. Ultimately, I would hope that my book might influence the way people think about the responsibility of penetration and the responsibility and focus that should be on a defendant rather than excessively focusing on (and invariably relying on stereotypes and myths of) a victim survivor.

If lawmakers took one lesson from your book, what would you most want it to be?

Ask more of a perpetrator/defendant and less of a victim/survivor.

What current projects are you working on?

I am currently working on a Participatory Arts Research Project which will work directly with victim survivors to properly understand the harm of sexual violence and to translate those findings into law and policy reform.