UK Edition
Rape defendants must prove they actively sought consent, say top judge and campaigners
Rape defendants should be forced to prove they actively sought consent for sex from their alleged victims under legal reforms being proposed by a leading judge.
Lord Justice Sir John Gillen, a former appeal court judge in Northern Ireland, has recommended the change as part of a six-month review of the law following the acquittal of two Belfast rugby players last year after a high-profile nine week rape trial.
His recommendations, which have gone out for consultation, relate to Northern Ireland but will have profound implications for UK-wide law. MPs and rape reform campaigners including MP Ann Coffey, who investigated the Rochdale child abuse scandal for police, are also pushing for the change.
They argue that it would be fairer than the current Crown Prosecution Service (CPS) guidelines which require a court to decide whether a defendant reasonably believed a rape victim had consented to sex.
It comes as ministers have ordered a review of how myths about rape influence juries and what could be done to tackled it amid declining charging rates for rape - now at their lowest for a decade - and concerns about low conviction rates.
Sir John said the definition of consent was vague which meant that juries might bring sexual stereotypes into play in deciding whether the woman had consented.
A YouGov poll found a third of men and 21% of women thought that if a woman had flirted on a date it generally would not count as rape. A third also believed it was not rape if a woman was pressured into having sex but there was no physical violence.
Sir John said: “Requiring the defendant to ensure he has a reasonable belief that consent has been given does not clearly define or suggest what should and should not be considered reasonable, again leaving the door open for stereotypes to determine assessments of reasonableness.”
“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.”
The review by Sir John was ordered by the Northern Irish justice department after Ireland and Ulster rugby players Paddy Jackson and Stuart Olding were cleared last year of rape after claiming all sexual activity was consensual.
Ms Coffey, author of a landmark report on child exploitation following the Rochdale child abuse scandal, said: “Young women are not receiving justice. The odds are stacked against them.
“It is very challenging for juries to judge whether the defendant had a reasonable belief that consent was given, especially when drink was involved. The difficulty is that the definition is vague and that is where rape myths and stereotypes kick in.
“The result is that juries may then fall back on sexual stereotypes and rape myths to decide whether there was consent.”
Katie Russell, of Rape Crisis, welcomed the recommendation, saying: “Criminal justice outcomes are woefully low for sexual offences in face of unprecedented levels of reporting of the crime."
The Ministry of Justice said: “We are aware of the Gillen review and await its final report.”
The Law Commission said: “We are aware of the review in Northern Ireland and that some stakeholders have asked for the Law Commission to consider this area of the law. If the Government takes the view that reform is necessary, the Commission will of course consider whether we can be of assistance.”