Sexual assault, like many other crimes, usually occurs when no one’s watching. Given the absence of a third party witness, how are we to decide guilt/innocence?
Circumstantial evidence is often not helpful because consent, that which differentiates between legal and illegal sex among adults, is essentially a mental event, and of this there can be no evidence: a brain scan won’t show us whether or not a person consented.
Considering consent as a behavioural event, a gesture or a word expressive of consent, is not much better: evidence is possible, but unlikely-even if an audio or video tape of the event exists, one must establish the absence of coercion for any consensual gestures and words.
In a way, things were better when force and resistance differentiated between legal and illegal sex: evidence of this is easily available-torn clothing, bruised body parts, etc. However, we recognize that force and resistance, and perhaps more often torn clothing and bruised body parts, may be part of consensual sex; we also recognize that force may not be physical and resistance may not be wise. Continue reading
