Dude Looks Like a Lady: Gender Deception, Consent and Ethics

Victoria Brooks, Jack Thompson

Research output: Contribution to journalArticleResearchpeer-review

Abstract

Finding the answer to whether consent is present within a sexual encounter has become increasingly difficult for the courts. We argue that this is due to the focus placed on entrenching gender binaries, a conservative sexual ethic and clear offender/victim roles. It should be the case that the court’s task is to find the truth of the encounter in coming to a judgment as to the ethical balance, rather than judging the parties’ conformity to cisnormative and heteronormative roles. This endeavour is obscured by the court’s need to exclude ‘sex talk’, or otherwise testimony as to the messy reality of the encounter, in favour of asserting gender identity and a procreative understanding of sex. We are, therefore, left in the position where the required information necessary for valid consent is obscured by the courts. We draw on an analysis of cases involving issues relating to consent to sex in order to argue for a judicial approach that is informed by a more flexible understanding of sexual autonomy.
Original languageEnglish
JournalThe Journal of Criminal Law
DOIs
Publication statusPublished - 5 Mar 2019

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moral philosophy
gender
conformity
testimony
offender
autonomy

Bibliographical note

Brooks, V., & Thompson, J. C. (2019). Dude Looks Like a Lady: Gender Deception, Consent and Ethics. The Journal of Criminal Law. https://doi.org/10.1177/0022018319834373

Cite this

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abstract = "Finding the answer to whether consent is present within a sexual encounter has become increasingly difficult for the courts. We argue that this is due to the focus placed on entrenching gender binaries, a conservative sexual ethic and clear offender/victim roles. It should be the case that the court’s task is to find the truth of the encounter in coming to a judgment as to the ethical balance, rather than judging the parties’ conformity to cisnormative and heteronormative roles. This endeavour is obscured by the court’s need to exclude ‘sex talk’, or otherwise testimony as to the messy reality of the encounter, in favour of asserting gender identity and a procreative understanding of sex. We are, therefore, left in the position where the required information necessary for valid consent is obscured by the courts. We draw on an analysis of cases involving issues relating to consent to sex in order to argue for a judicial approach that is informed by a more flexible understanding of sexual autonomy.",
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Dude Looks Like a Lady : Gender Deception, Consent and Ethics. / Brooks, Victoria; Thompson, Jack.

In: The Journal of Criminal Law, 05.03.2019.

Research output: Contribution to journalArticleResearchpeer-review

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