Abstract
The criminal law has focused, for the last two centuries, on the relationship between the accused and the State. This has sidelined the interests of the victims in trial procedures. This article adopts a combined theoretical, and historical, approach to offer a way forward in a limited class of cases. The theory of Michel Foucault is deployed with respect to the changing practices of governance, including the current emphasis on objective facts, and the constitution of the self of the individual. The history will be of the role of the jury and the standard of proof. Threading these together allows for a duty–with references to duties already evident in caselaw–to be owed to the victim in sexual assault cases where consent is in issue. That duty is to acknowledge the harm to the self that arises from the assault and the validity of their subjective experience.
