by Claude Opus 5.5
Rae Langton argues that some speech acts can be “illocutionarily disabled”. Could a refusal, or its absence, lack uptake in a setting of numbers and intoxication? What follows for criminal fault?
In “Speech Acts and Unspeakable Acts” (1993), Rae Langton drew on J. L. Austin’s theory of speech acts to argue that some speakers can be silenced not by being prevented from uttering words, but by being prevented from performing the acts those words would ordinarily perform. Austin distinguished the locutionary act (saying something meaningful), the illocutionary act (what one does in saying it: warning, promising, refusing) and the perlocutionary effect (what follows from it). Illocutions depend on felicity conditions, including uptake: a refusal that is not recognised as a refusal fails as a refusal. Langton’s controversial thesis was that pornography could create conditions in which women’s utterances of “no” are not taken up as refusals. A woman says the words, but the act of refusing misfires.
The thesis has been heavily debated, notably by Daniel Jacobson, who argued that the failure is one of perlocution, the hearer’s not acting on the refusal, rather than illocution. But the conceptual tool is useful whatever one thinks of the pornography argument. It allows us to ask whether, in particular social settings, refusal can be disabled.
Uptake under numbers and intoxication
A setting combining group presence and intoxication is a plausible site for illocutionary disablement, for at least four reasons.
First, intoxication impairs the speaker’s ability to produce the conventional markers that secure uptake: clear articulation, sustained eye contact, consistent bodily orientation, repetition. Her refusal may be produced in a form that hearers are disposed to discount.
Second, intoxication impairs the hearers’ interpretive capacities as well, and in a direction shaped by motivated reasoning. Ambiguous signals are resolved in favour of what the hearer wants.
Third, group settings establish shared interpretive frames. If a group has constructed the situation as one in which she is willing, individual members may assimilate contrary signals into that frame. Each hearer’s uptake is mediated by his expectation of others’ uptake.
Fourth, group settings alter the conventional authority of the speaker. Austin noted that some illocutions require the speaker to occupy a certain position. A refusal addressed to one person is a refusal to him; a refusal addressed to a room may not be heard by any particular person as addressed to him.
The question’s parenthesis, “or its absence”, is important too. Where refusal is disabled or the speaker anticipates that it will be, she may not attempt it. The absence of refusal then does not express acceptance; it reflects her reasonable judgement that refusal would misfire. A theory of consent that reads absence of refusal as permission is vulnerable to exactly this structural silencing.
What follows for criminal fault?
Here the analysis meets a difficulty. If refusals can lack uptake, a defendant may sincerely believe that the complainant was willing. Does disablement therefore undermine criminal fault?
The answer depends on the mens rea standard.
Under a purely subjective standard, such as the one adopted in DPP v Morgan (1976), an honest belief in consent, however unreasonable, negated liability. Illocutionary disablement would then be exculpatory: the more thoroughly the setting disabled refusal, the stronger the defence. That result is perverse, and it was one of the reasons Parliament abandoned Morgan.
Under the Sexual Offences Act 2003, the defendant must reasonably believe in consent, and reasonableness is assessed having regard to all the circumstances, including any steps taken to ascertain whether the complainant consented. This changes the analysis. A reasonable person is aware that intoxication and numbers impair uptake. Knowing that, a reasonable person would take steps to secure clear communication rather than relying on the absence of a recognised refusal. On this standard, illocutionary disablement does not exculpate. If anything, the conditions that disable refusal heighten the duty to ascertain consent.
In New York, and many American jurisdictions, the structure is different again, with mens rea for some sexual offences turning on knowledge of the complainant’s incapacity or lack of consent. The more the law relies on subjective knowledge, the more vulnerable it is to the defendant’s claim that he did not perceive a refusal that the circumstances had silenced.
Collective fault
A further implication concerns groups. If the shared interpretive frame of the group causes uptake failure, then responsibility for the failure is partly collective. Each participant contributed to, and benefited from, a frame that made refusal impossible to hear. Christopher Kutz’s participatory account of complicity suggests that each can be accountable for the group’s construction, not only for his own individual misperception.
Objections
Jacobson’s challenge remains relevant: perhaps what fails is not the illocution but the hearer’s willingness to respond to it. If so, the refusal was performed and ignored, which strengthens rather than weakens the case for fault. Either way, the defendant cannot rely on the failure.
A different objection is that the disablement framing risks portraying complainants as passive. That concern is serious and points to the need to keep the speaker’s agency in view: she did refuse, or would have, and the failure lies with those who did not, or would not, hear.
Conclusion
Refusal can lack uptake in settings of numbers and intoxication, and its absence can reflect anticipated disablement rather than acceptance. Under an objective or reasonableness-based mens rea, this increases rather than diminishes fault, because the conditions that silence refusal are conditions a reasonable person would recognise and guard against.