‘I presume she wanted it to happen’: rape, reasonable belief in consent, and law reform in Northern Ireland
In 2018, a high-profile rape trial – known as the Rugby Rape Trial – took place in Northern Ireland, ending with the four accused being found not guilty on all charges. The charges included 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 laid bare the ongoing challenges associated with criminal justice responses to sexual violence that those working and researching in the area had long been familiar with.
In April 2018, the Northern Irish Criminal Justice Board commissioned a review of the law and procedure in prosecutions of serious sexual offences. The review, led by Lord Justice Gillen, covered a range of issues and, of significance to my research, led to a re-evaluation of consent laws, including the requirement that, to establish an offence under part 2 of the Sexual Offences (Northern Ireland) Order 2008 the prosecution must not only prove that the complainant did not consent, but that the defendant did not reasonably believe that the complainant consented (the ‘reasonable belief threshold’). My advance open access article in the January/February 2022 issue of the Northern Ireland Legal Quarterly analyses trial transcripts and news reports from this high-profile trial and illustrates how trial narratives around consent and reasonable belief in consent ‘responsibilise’ the complainant while minimising the (in)actions of the accused. Within this context, two core themes are identified: a lack of force and/or resistance during the encounter; and the dissection of the complainant’s behaviour and consequently her non-ideal victimhood. The article also considers whether the proposed rewording of the reasonable belief threshold, to focus on the accused’s failure to take steps to ascertain whether the complainant consented, as set out in the Gillen Review, could lead to a different trial narrative.
Force and resistance
A significant body of research has demonstrated that the absence of consent, and even the presence of verbal refusal, often falls short of what is considered ‘proof’ of rape due to societal expectations that a ‘real’ rapist will use physical force and a ‘real’ victim will physically resist. In the Rugby Rape Trial narratives of force and resistance were evidenced through defence questioning such as, ‘But, Ms … there is no suggestion at all that he grabbed you or pulled you or lured you’ and the defence asking the defendant if they were party to a ‘violent attack’. In response to questions about what made the defendants think that the complainant consented, they explained that they did not use ‘force’ and that they ‘presumed she wanted it to happen’. The defence also focused on the complainant’s lack of resistance, noting that ‘nothing was said by you nor shown by you nor rejected by you to show that you were not consenting’. Despite these dominant narratives, the complainant did testify that she pushed the defendant’s hands away and said no on many occasions. There was also evidence that the complainant had been bleeding during the encounter and that one of the defendants knew this but associated the blood with her ‘period’ not ‘pain’.
In the article I argue that the prosecution therefore missed a key opportunity to investigate the (in)actions of the defendants when the fact of the complainant bleeding was noticed. While some counter-narratives were identified, such as the prosecution’s focus on the defendants’ disregard for the complainant’s wishes and judicial directions to the jury attempting to dispel rape myths, narratives of force and resistance nonetheless dominated.
Complainant behaviour and non-ideal victimhood
Beyond a focus on force and resistance, narratives of ‘ideal’ victimhood were also evident in the trial transcripts. The ‘ideal’ victim has been conceptualised as an individual deemed to be deserving of victim status because they are weak, doing a ‘respectable project’, and cannot be blamed for being where they were. In the Rugby Rape Trial, the defence asked the complainant questions that were imbued with assumptions about ‘ideal’ victimhood, including perceptions around what is ‘appropriate’ versus ‘risky’ behaviour or ‘rational’ responses to rape. These included questions surrounding why the complainant went up to the defendant’s bedroom, labelling the bedroom as a ‘private place’ and suggesting that the complainant had been ‘teasing’ one of the defendants. The focus on the complainant’s behaviour also extended to her interactions with other men earlier in the night, with the defence noting that the complainant had been tactile through the evening, touching the leg of one man and stroking the face of another. The admission of such evidence is extremely problematic as it rests on the flawed logic that flirting, even with other men, is indicative of consent to future sexual activity.
Again, some counter-narratives by the prosecution and the judge were identified, including clear statements regarding the complainant’s right to ‘say “no” and to decide what sexual activity she wants, how far she is prepared to go and what she does not want to do’. However, I argue that the emphasis throughout the trial is primarily on what the complainant did or did not do, with extremely limited corresponding expectations being placed on the defendants in relation to how they behaved in the situation.
The Gillen proposal on ‘reasonable belief in consent’
Legal inquiries into consent during this trial sparked outrage with some claiming the defence questioning of the complainant amounted to ‘victim-blaming’ and speculating whether a different approach to legally defining consent was needed. Significantly, consent was one of a range of issues evaluated as part of the Gillen Review, and my research has been particularly interested in the suggested reformulation of the reasonable belief in consent threshold: from requiring consideration of any steps taken by the defendant to ascertain whether the complainant consented when assessing reasonableness, to now requiring consideration of the defendant’s failure to take steps to ascertain consent. In my article I argue that this proposal has the potential to subtly redistribute narratives of responsibility between the complainant and the accused. In particular, I argue that the language of ‘failure’ provides the prosecution with the opportunity to question the defendant on instances during the encounter where further enquiries into consent could have been expected, and, where the defendant failed to do so, to ask them to account for this failure. However, I note that the potential of this proposal can only be realised through a change in prosecutorial practice to ensure the reasonable belief threshold, and, particularly, the ‘steps to ascertain consent provision’ are explicitly dealt with as part of the trial narrative.
While is not suggested that this change to the reasonable belief threshold will change the verdict, it may nonetheless shift attention to the (in)actions of the perpetrator, thus contributing to an important counter-narrative.