Reforming Sexual Consent in Northern Ireland: Reflections on ‘Reasonable Belief’

In Northern Ireland (NI) establishing the presence or absence of consent is a key factor in determining whether a sexual offence has been committed. The application of the consent threshold becomes even more complicated when the guilt or innocence of a defendant rests depends on whether their belief in consent was reasonably held. This paper is a response to a specific proposal in the 2019 Gillen Review into serious sexual offences in Northern Ireland: that the definition as to what constitutes a reasonable belief in consent should be amended so as the jury are now asked to take account of a failure by the defendant to take any steps to ascertain whether the complainant was consenting.

Drawing from a Socio-Legal Studies Association (SLSA) funded project undertaken by the author, which included semi-structured interviews with individuals working in the sexual violence sector in NI, this paper situates NI’s approach to sexual consent within broader trend towards ‘affirmative models of consent’. The paper advances three concrete recommendations aimed at strengthening Gillen’s proposal on reasonable belief: 1) amend procedural law on sexual offences to create a judicial filter for dealing with questions on consent; 2) devise jury instructions that acknowledge the actions of the defendant and their mindset in the context of intimidation or coercive conduct, and; 3) devise jury instructions dealing with the defendants failure to take steps and providing some clarity around what is meant by a ‘step’.