Sex, Gender, Consent and the Law – Their Intersection in Changing Times
How do we accommodate non conforming expressions of sexual and gender identity without resorting to violence? And how can existing laws or new laws confront deceptions based on fraudulent representations of sexual identity?
These are some of the questions which we as a society are pondering, or should be pondering, following the beating, at South Rivers, of a teenage male, who has been accused of impersonating a female.
What occurred in that rural village, as told to SEARCHLIGHT by residents, has previously been played out in other parts of our tiny nation, and indeed, countless times in other parts of the world.
First of all, we condemn unequivocally, the fact that the young man was beaten, no matter what he is alleged to have done. Anytime people resort to vigilante justice, we must push back forcefully, so that others are not encouraged to act similarly. Our people simply cannot be allowed to appoint themselves judge, jury and executioner.
In today’s world, what is considered “acceptable” sex and gender identities has been evolving. Previously, the intersection of sex and the law had been confined to traditional issues of rape and “unnatural” sex acts. But these covered two very different domains of experience. The first involved protecting the population from sexual assault and punishing those who offended. The second involved the state policing the sex acts of consenting adults by expressly criminalising some forms of sexual conduct.
However, while some may argue that the boundaries separating “natural sex” and “unnatural sex” are being broken down, the issue of consent remains absolutely sacrosanct. Our laws and legal practice must therefore respond to what has therefore become a matter of increasing urgency. The freedom to engage in the sex act of one’s choosing is not the freedom to fool others into engaging in sex acts they have not consented to. There is a firm defining line between consensual sex and non consensual sex regardless of the sex act itself. No one should be allowed to cross these lines. Consent to sex is central to all sexual encounters and that involves both parties being absolutely aware about what that they are consenting to — whether it be a same sex encounter or a heterosexual encounter.
Any deception by any party in this regard should be unlawful. And while we understand that shame may indeed prevent victims from sharing their experiences, after all, no one wants to believe that they can be fooled in such intimate matters, it is even more important that no one should assume impunity in the commission of sexual crimes.