Defining Consent in Irish Sexual Offences Law: Unfinished Business

Dr Susan Leahy

The introduction of a statutory definition of consent in the Criminal Law (Sexual Offences) Act 2017 represented a significant development of Irish sexual offences law, bringing it into conformity with that of other common law jurisdictions such as England and Wales and Canada. Section 48 of the 2017 Act amends the Criminal Law (Rape) (Amendment) Act 1990 to provide a two-tier definition of consent, beginning with a clear, positive statement of what constitutes a legally valid consent to sexual activity: ‘A person consents to a sexual act if he or she freely and voluntarily agrees to engage in that act’. The second tier then gives further guidance on consent, providing a list of eight situations where consent will be deemed to be absent (e.g. where an individual submits as a result of the use or threat of force; where an individual is asleep or unconscious, or; where an individual is mistaken about the nature or purpose of the act involved (e.g. believing it to be for medical purposes when it is really for the sexual gratification of the defendant)).

This new legislative definition of consent is a welcome departure from the pre-existing common law approach to defining consent which relied on outdated (predominantly English) case-law. There was no clear, positive statement from the Irish State on what constituted a valid consent to sexual activity. This absence of guidance not only contributed to the difficulties of proving an absence of consent in sexual offence trials, but also was beginning to cause problems for awareness-raising and education programmes on consent. The common law approach to defining consent lacked clarity, particularly for lay people who wanted a clear statement on what is necessary for a valid consent. The new definition of consent provides accessible guidance on consent for both juries and the general public and responds to many of the criticisms which had been levelled at the common law. However, the definition by itself is not enough to ameliorate the difficulties of proof in sexual offence trials where consent is usually the central issue and cases typically amount to ‘swearing contests’ between the accused and the complainant. In cases with such significant grey areas, further change is necessary to ensure that the prosecution is afforded the best opportunity to prove an absence of consent. Such interventions will require additional legislative reform, most notably reform of the honest belief in consent defence, which was not included in the 2017 reform efforts but has been referred to the Law Reform Commission for consideration. Review of the rules of evidence which control the use of sexual experience evidence or the provision of corroboration warnings in sexual offence trials is also important to ensure that these areas of the law are not continuing to unfairly prejudice the complainant during the trial. Ultimately, these areas of the law will also require legislative attention.

In light of the pace of legislative reform, development of these aspects of the law are necessarily long-term goals. However, in the short-term, non-legislative intervention in the form of the introduction of model jury directions on consent would provide an important support for the new definition of consent and should not be unduly burdensome to implement. Such sample directions assist judges in instructing jurors on how to approach their deliberations on consent and may be provided in bench books created for the judiciary. An example of the use of such directions may be taken from the English Crown Court Compendium, which is published by the English Judicial Council. The latter provides model directions not only to guide the jury on how to interpret the definition of consent, but also how to avoid reliance on erroneous and prejudicial stereotypes about sexual offences (so-called ‘rape myths’) when deliberating. The persistence of rape myth acceptance in Irish society is evidenced in attitude surveys such as the Eurobarometer survey in 2016 which showed that 11% of Irish respondents believed that being drunk or on drugs may make having sexual intercourse without consent justified and 9% believed that voluntarily going home with someone or wearing revealing, provocative or sexy clothing could justify non-consensual sexual activity. More significantly, despite statistics repeatedly demonstrating that sexual offences are typically committed by an individual known to the victim, 24% of respondents agreed that women are more likely to be raped by a stranger than someone they know. If such attitudes persist in society, they will also find their way into jury deliberations. Indeed, English research with mock juries has repeatedly demonstrated that such attitudes do influence jurors’ interpretations of the evidence in sexual offence cases.

The value of model jury directions is that they provide judges with a means of dispassionately directing jurors on the realities of sexual offences, thereby off-setting the potential negative effects of rape myths, without creating concerns about unfairly prejudicing the defendant. As the directions are not mandatory and can be tailored by trial judges, there can be no suggestion of interference with judicial independence. The usefulness of such directions can be illustrated by the following example from the Crown Court Compendium, which guides judges on how to direct jurors not to make assumptions about the validity of a complainant’s evidence where s/he was intoxicated at the time of the alleged offence:

“V has accepted that she was very drunk on the night of {insert} but it is important   that you do not assume that because she got into that state she was either looking for, or willing to have, sex. When it was suggested to her in cross-examination that she was out that night to get drunk and then to have sex she said {insert}. You should consider this evidence and decide what you make of it but you must not assume that because she was drunk she must have wanted sex. People do go out at night and get drunk, sometimes for no apparent reason at all, and it would be wrong to leap to the conclusion that such a person must be out looking for, or willing to have, sex or that someone else who sees and engages with that person could reasonably believe that that person would consent to it.”

The value of directions like this is clear. Jurors are reminded of that being drunk at the time an attack occurred does not mean that an individual was ‘asking for it’ or is less worthy of belief. However, this is achieved in neutral manner which does not favour or support the complainant’s version of events over that of the defendant’s (something which a trial judge cannot of course be seen to do). Given the difficulties of directing a jury in a sexual offence trial, along with the understandable concern of judges that inappropriate jury direction may lead to a conviction being overturned on appeal, model jury directions provide judges with the support to seek to better educate jurors on consent and the realities of sexual offence cases. Without such assistance, judges may quite rightly adopt a conservative approach to jury direction on the legal meaning of consent, limiting themselves to recital of the new definition. Providing model directions which can be used when elaborating on the meaning of consent and to offset any stereotypes which might have arisen on the facts of the case supports trial judges in offering more robust guidance to jurors, thereby increasing the potential that the new definition will have a practical impact on their deliberations. Consequently, the introduction of such directions is a significant piece of ‘unfinished business’ which should be attended to if the promise of the new definition of consent is to be fully realised. Discussion of how best to introduce such guidance is an important next step in the development of Irish sexual offences law.

Dr Susan Leahy, Co- Director, Centre for Crime Justice & Victim Studies, School of Law, UL