Presuming Non-consent to Sex in Cases of Incapacity and Abuse of Position

Stuart Green addresses a set of foundational issues that need attention before criminal laws are drafted. Sexual acts can be presumed to be non-consensual if the victim lacked the capacity to give consent, for instance due to mental disability or intoxication, or if he or she was in subordinate position in relation to the offender. Even if approval was expressed, under these conditions it might not amount to normatively valid consent. Green emphasizes the potential conflicts between positive sexual autonomy and negative sexual autonomy that make it difficult to determine the threshold for criminal liability. With regard to conditions such as mental disabilities and intoxication, he argues for a case-by-case analysis. He also analyses the abuse of position doctrine and points out that one should distinguish between different rationales, one of them being the prevention of corruption.