Dr Eithne Dowds, Queen’s University Belfast
The definition of sexual consent, and the legal framing of the accused’s mindset, in the context of rape, has been the subject of reform over recent decades. For example, the law in England and Wales, as well as Northern Ireland (NI), previously defined rape as penile penetration without the consent of the complainant, and the liability of the defendant was dependent upon whether they honestly believed the complainant consented. Reforms in 2003 and 2008 respectively, legally defined consent as agreement by choice where the person has the freedom and capacity to make that choice, and redefined the law related to the defendant’s mindset with a focus on whether the defendant reasonablybelieved that the complainant consented. This ‘reasonable belief threshold’, is accompanied by a provision explaining that in determining whether a belief is reasonable, consideration should be given to any steps taken by the defendant to ascertain whether the complainant consented.
While such a reform marks an improvement, scholars at the time expressed caution. Recent research, from jurisdictions where a similar reasonable belief threshold operates, also suggests that it encourages a disproportionate focus on the complainant’s actions resulting in an assumption of consent in the absence of physical or verbal resistance. In NI, this issue came to the fore during the high profile ‘Rugby Rape Trial’ in 2018. The trial concerned the alleged rape and sexual assault of a 19-year-old woman by Ulster and Ireland rugby players Paddy Jackson and Stuart Olding, as well as allegations of exposure and perverting the course of justice against Blane McIlroy and Rory Harrison, respectively. The trial dominated the local and international media and resulted in competing #IBelieverHer and #IBelieveHim social media campaigns. Those supporting the complainant raised concern that her cross-examination by four different defence barristers amounted to ‘victim blaming’, compared to the limited attention paid to the actions of the defendants who ‘presumed’ that the complainant consented. Significantly, consent was one of a range of issues evaluated as part of a subsequent review into the investigation and prosecution of sexual violence within NI. The final report from the review, led by Sir John Gillen (the ‘Gillen Review’) was published in May 2019 containing over 200 recommendations, including proposed changes to the substantive definition of consent.
In my recent JLS article ‘Redefining consent: rape law reform, reasonable belief, and communicative responsibility’ (Vol 49, Issue 4, 2022), I draw on 16 semi-structured interviews with professionals from within and across the sexual violence sector in NI. The interviews explored participants views on the law of consent, in particular, Gillen’s recommendation that the reasonable belief threshold be reworded so that, when determining whether a belief in consent was reasonable, the jury are asked to consider a failure by the defendant to take steps to ascertain consent (Gillen p. 377). The article argues that while this reform seeks to shift attention to the actions of the defendant, the manner of its application is not entirely clear and the core controversies that arose under the previous law are likely to endure. Indeed, the review did not provide a definition of the ‘steps’ provision or explain what might amount to a ‘failure’ on the part of the defendant, instead leaving matters to be determined on a case by case basis (Gillen p. 375). Participants in my research thus expressed uncertainty around how the recommendation would be applied in practice:
[i]f I was sitting on the jury of 12 and going, ‘Right OK, what did he do to ensure that she was OK? Well, he checked, he asked. OK. So, do people ask on all occasions? No. Right, OK. Does that mean he’s guilty of rape? Not necessarily. (Interview 4, sexual violence support professional, 21 October 2019).
Such uncertainty, it was suggested, may lead to the defence making a mockery of any prosecution questioning in this regard:
[T]hink about this from your own experience – this is real life….Is that how human relations actually are?’ (interview 16, criminal justice professional, 8 January 2020).
Further to this, several participants assumed that a focus on any steps taken by the defendant was going down the route of requiring a signed contract, with references to consent being ‘written’ (Interview 4, sexual violence support professional, 21 October 2019); the need to get ‘a signature’ (Interview 7, sexual violence support professional, 8 November 2019); and going through a ‘list’ (Interview 5, community stakeholder, 28 October 2019). While, as noted above, the Gillen review does not define a ‘step’, nothing in the review suggests that this provision would be legally interpreted in the way these research participants describe.
In terms of moving forward with Gillen’s recommendation, I have been trying to think through how we might develop the steps provision further, or at least reflect on its place within determinations of whether a sexual offence has occurred, so as to avoid ridicule or mockery. In this respect, the concept of communicative responsibility provides some interesting insights that may inform how we approach any expectation of a defendant taking steps to ascertain consent within the context of sexual offences. The theory of communicative responsibility posits that ‘people approach a communicative event with the implicit belief that their primary goal is to establish a state of shared meaning or understanding between themselves and that each communicator bears a measure of responsibility for bringing about that state’ (Aune et al p. 359). However, in the context of a rape allegation, where any shared understanding of the event is lacking, disproportionate emphasis is placed on the complainant and there is a failure to recognize the communicative responsibility that also falls on the alleged perpetrator.
An insight from the interviews that aligns with this notion of communicative responsibility is that there may be features of an encounter that, as one participant noted, trigger ‘alarm bells’ (Interview 4, sexual violence support professional, 21 October 2019). To draw a specific example from the Rugby Rape trial that I have discussed elsewhere, the complainant had been bleeding during the encounter and, while this was known to at least one of the defendants, they did not address the issue as they felt it would be embarrassing. In such an instance, the communicative responsibility of the defendant should be heightened and enquires into their actions or inactions during an encounter should be made. Drawing on Gillen’s recommendation, the prosecution may do this by questioning the defendant in the following way: ‘when you noticed the blood, did you ask the complainant if she was okay and if she wanted to continue with the sexual activity?’ While the defendant may respond – as the defendant in this trial did when answering questions from his own defence barrister – that he thought it would be embarrassing, the prosecution could press the point: ‘So even though you knew the complainant was bleeding, you failed to check whether she was okay and whether she wanted to continue with the sexual activity because you decided it was better to avoid embarrassment?’.
What I have tried to illustrate using this example is that, when explored through the lens of communicative responsibility, a focus on the defendant’s failure to steps to ascertain consent need not be interpreted rigidly or require a written contract. Rather, it can be used in a way that seeks to normalise an active and responsive approach to sexual relations. While challenges will of course remain, Gillen’s recommendation, if implemented, thus has to the potential to create a trial narrative that no longer places sole responsibility on the complainant with respect to consent.