CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, January 13, 2021

lazar on Sexual Consent

Ruthy Lowenstein Lowenstein lazar (College of Management) has posted Epistemic Twilight Zone Of Sexual Consent (Southern California Interdisciplinary Law Journal, Forthcoming) on SSRN. Here is the abstract:
The article offers an epistemological discussion of consent in sexual violence cases using the theory of epistemic injustice, developed by Miranda Fricker. It introduces an innovative perspective of consent, which has not been discussed in the legal scholarship to date.

Fricker's theory of epistemic injustice has been used mostly in philosophy. The legal scholarship has scarcely discussed epistemic injustice. The present article attempts to fill this gap in the legal scholarship by shedding a new light on the theoretical and practical discourse of consent.

The legal research on earlier stages of the legal process, such as the decisions made by the prosecution is relatively limited. The discourse of consent by prosecutors, the way consent is analyzed, conceptualized, and interpreted by them, and the way in which it affects their legal decisions remained undocumented and untheorized. This blind spot in the legal literature is the focus of the present article. Using in-depth interviews with twenty-nine sex crimes prosecutors, it sheds light on a phase in the criminal proceeding that is hardly discussed in legal academic writing.

The epistemological discussion shows that sexual consent is not simply a dichotomous legal category but rather a sociological element. Prosecutorial decision making in rape cases is not determined exclusively by legal factors but also by “collective knowledge” regarding consent. The interviews reflect, what I call, “Prosecutorial Realism,” that is, the manner in which prosecutors perceive the approach to consent followed by the courts (or juries). Although prosecutors believe the victim and acknowledge the rape offence, they do not proceed with charges because of their consideration of the discourse of consent in the courts.

The article contributes to the scholarship is two ways: first, it employs a philosophical theory in the legal analysis of consent, offering non-legal insights to the discussion. Second, it offers an epistemological analysis of consent in the pre-trial stage, which has been neglected by the academic scholarship.

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