Henri Bynx: When consent is impossible

This commentary is by Henri Bynx, a Montpelier resident and co-founder and co-director of the Ishtar Collective.

Vermont, like other states, updated its sexual consent laws in 2021. There have been monumental cultural shifts around sex, gender, and what constitutes sexual assault since most rape and consent laws were written in the 1960s and never revised. 

Updating them to reflect our society's modern understanding of sexual assault was long overdue.The original laws hinged on an assumption that rape was defined solely by physical force. They did not address the issue of consent, or lack thereof, which is essential to differentiate consensual sex from assault. 

Vermont now defines consent as “words or actions by a person indicating a knowing and voluntary agreement to engage in a sexual act.” Critically, the laws now acknowledge that consent is not given when a person submits to a sexual act because of force, threat of force, fear, or the inability to make a voluntary decision about whether to engage in that sexual act. In sum, a lack of consent means a crime occurred.

In understanding consent, we also recognize that there are certain relationships in which one person is incapable of giving consent to the other. Power differentials, which don’t need to be explicitly stated, are the hallmark of many sexual assaults, as the victim submits because of fear of repercussions. 

Certain power differentials, such as the one between a law enforcement officer and a person in their custody or under investigation, make consent impossible. Some states have laws that deem a person unable to give consent to sexual contact in these scenarios. I applaud Vermont for passing a law in 2019 that made it illegal for a law enforcement officer to have sexual contact with an individual who is in custody, being detained, or being arrested.

H.22, “An act relating to sexual exploitation of a person who is being investigated by law enforcement,” recently introduced by Rep. Taylor Small, would similarly prohibit a law enforcement officer from engaging in a sexual act with a person whom the officer is investigating or who the officer knows is being investigated by another officer. Sexual assault by a police officer is the second-most prevalent form of police violence behind excessive force, and because victims are often hesitant to report their experience, there are likely many more cases than have been documented

Women, and women of color in particular, are the most vulnerable to sexual assault by predatory law enforcement officers because of the power disparity that exists between them. Women who are criminalized for minor misdemeanors such as drug offenses lack material resources, are often not seen as victims, and are easy targets for a police officer who will extort them for sex in exchange for not arresting them. 

The fear of arrest makes it impossible for a victim to give consent even if it appears that they may have made a choice — violation over incarceration.

One of the most common instances of police sexual misconduct according to Family and Intimate Partner Violence Quarterly occurs between police and consensual adult sex workers and victims of trafficking. Due to their engagement in a criminalized activity, victims engaged in prostitution by choice or by coercion are targeted by officers who use their fear of arrest to exploit them. 

Also, there is no basis to allow undercover officers to engage in investigatory sex to prove prostitution, as it can be proved, in the vast majority of jurisdictions, upon the agreement to exchange something of value for sex. Additionally, because consent was obtained by deception, it amounts to sexual assault.

Law enforcement officers should be held to the same standards as citizens. I urge the Vermont Legislature to pass H.22 and insist that any sexual act that occurs without consent is a crime.


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