Sexual Consent in Northern Ireland: The Social and Legal Dimensions

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Abstract

In Northern Ireland (NI) consent is a key concept in the law on sexual offences. Despite its centrality to determining the existence of a criminal offence, it is a concept that is subject to different and competing interpretations. This becomes even more complicated when the guilt or innocence of a defendant rests not only upon whether there was consent or not but whether the defendant’s belief in consent was reasonably held. Public debate on these issues came to the fore in 2018 as a result of a high profile rape trial, often referred to as ‘the Rugby Rape Trial’, and the law on consent was considered as part of an independent review into serious sexual offences led by the Lord Chief Justice Sir John Gillen (the ‘Gillen Review’) ending in May 2019.

This paper is a response to the specific proposal in the Gillen Review 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 trends towards what has been described as ‘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’.
Original languageEnglish
PublisherQueen's Policy Engagement
Number of pages6
Publication statusPublished - 26 May 2020

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