Sex: A duty to ask in advance?

Sir John Gillen, a former appeal court judge, has conducted a review of the law and procedures of serious sexual offences in Northern Ireland. That review has published its Preliminary findings here.

Sir John's Preliminary Report makes 16 key recommendations, many of which seem entirely sensible. Overall, it is a very strong body of work.

Within the Review, however, are recommendations which would appear to oblige an accused person to actively seek consent before having sex. Sir John believes that the current requirement of a “reasonable belief” in consent, section 1(1)(c) Sexual Offences Act 2003, is not clear enough. He fears it leaves the door open to stereotypes and popular myths to determine what ‘reasonable’ means. As well as recommending education of juries about sex offences, Sir John goes on to say:

“[81] I believe there should be a discernible shift towards a requirement for some measure of affirmative or participative expression of consent and away from a focus on resistance as a means to prove the absence of consent.”

This passage of course assumes that the focus of rape trials is currently on whether the alleged victim resisted in some way. Given that the burden of proof is on the Prosecution to prove a lack of consent, this assumption may be accurate although it does tend to ignore the ‘reasonable belief’ test. Sir John goes on:

“[82] Accordingly, we have proposed amendments to the 2008 Order as follows: 

…..to add that, in determining whether there was a reasonable belief in consent, the jury should take account of a failure to take any steps to ascertain whether the complainant consented”

However gently-worded, this will likely impose a duty on A to show that he sought and gained B’s consent. Suppose A is accused of raping B. What this proposal means is the judge will ask the jury to consider if A ever asked for B’s agreement to sex. Of course, under the current law of A’s ‘reasonable belief’ in B’s consent, the jury can already apply their minds to this question, if they wish to. However, for the trial judge to specifically direct their minds to this is surely a step too far. The effect would be to foster the notion that A should not be acquitted unless he at least claims to have gained B’s verbal consent. Not only is that a dangerous reversal of the burden of proof, but it is also totally detached from reality.

Where A is accused of raping B, there are several large problems with a Judge implying that A had a duty to gain the prior verbal consent of B:

Pre-existing relationships and routines

Such a duty cannot be confined only to ‘new relationships’ or the ‘early stages' of A and B's sexual contact. Such concepts are impossible to define in law. Rape can, of course, be committed during ongoing relationships, long-standing partnerships and also marriages.

Must everyone now remember to specifically ask for their partner’s consent in order to be Sexual Offences Act-compliant? For example: “Darling, I know we usually have sex on a Thursday while Benjamin is at judo, but the law has changed and so you must remember to ask me from now on”.

The likelihood of false testimony becoming the norm

If this recommendation is adopted, news of it will spread like wildfire. Will it mean people about to have sex actually start asking for each other’s verbal permission? Obviously not. It will simply mean anyone accused of rape will start claiming there was a prior verbal agreement. Moreover, almost anyone sitting on the jury will know that such as assertion is probably untrue, but will consider it something of a necessary fib which is irrelevant to the true question of consent.

Seeking consent in initial sexual encounters

Even if there are cases where a request for verbal consent is deemed relevant by a jury, what exactly is meant by seeking consent for the first time? A lot of highly of flirtatious talk and even frank sexual talk can fall short of a specific agreement. Where is the line between sexy talk and agreeing to action? When is sexualised banter considered real and meaningful and when is it just euphemism or double entendre? For example:

"Did you actually seek her consent to have sex, Mr Greaves?"

"No Your Honour, but when we were in the kebab shop together, she hugged me and said she wanted to nibble on my sausage. I hadn't bought a sausage so I just assumed.."

Revocation of an apparent verbal agreement

Even after B’s agreement to have sex with A, both parties obviously retain the right to change their minds. Does a requirement to ask for B’s consent also imply a duty on B to communicate her change of heart? Is B’s agreement to have sex, once established, deemed ‘binding’ if B says nothing further? Clearly it could not be strictly binding in this way - so why have a specific requirement to seek it in the first place? In short, why reduce it to spoken words at all?

Why restrict the duty to seek consent only to rape cases?

Logically, if A has a duty to ask for B’s consent for sex, then why not for putting hands on B’s private areas? What, in principle, is the distinction between rape and sexual assault here? Don’t forget, any change must also apply to long-standing relationships. Might the following exchange also become necessary for legal compliance:

“Darling I know you're busy making a casserole but I'm just going to grab your bottom is that okay?”

Unwilling verbal agreements

There are, of course, also highly abusive relationships where an apparent verbal agreement to sex is given by B, but unwillingly so. In fairness, Sir John’s report deals with this scenario comprehensively elsewhere within his recommendations about cases where threats or fear applies. The point here is simply that spoken words are not the gold standard of consent in any event.

Conclusion - what mischief are we actually attempting to cure?

Surely the reality is that genuine consent is overwhelmingly demonstrated by actions, and rarely by words. Happy sexual contact is actively participated in by both parties (or all parties!). The current law requires A’s reasonable belief in B’s consent. In determining this, all the prevailing circumstances can be taken into account. There is no obvious problem with this status quo. For example, if a jury are sure that B was lying frozen and silent throughout sexual intercourse, they are very unlikely to find that A reasonably believed B was consenting to it. Of course, satisfying that burden of proof is never easy, and A might even tell lies to try to avoid conviction. There are many wider problems with the system which we discuss here. However, attempting to import legal requirements that A seeks B’s prior consent to sex are surely divorced from reality, and will cause a myriad of problems.

Brett Wilson LLP's crime and regulatory department specialise in defending allegations of sexual assault.  Click here to find out how we can assist you if you are facing an investigation or proceedings.