‘I presume she wanted it to happen’: rape, reasonable belief in consent, and law reform in Northern Ireland

Abstract

In Northern Ireland (NI), determinations of whether the crime of rape has occurred require consideration of the accused’s reasonable belief in the complainant’s consent (the ‘reasonable belief threshold’). Drawing on the rich body of feminist scholarship critiquing this threshold, this article makes two core contributions. First, through a thematic analysis of trial transcripts and news reports from the high-profile 2018 ‘Rugby Rape Trial’ in NI, the article illustrates how trial narratives around consent and reasonable belief in consent ‘responsibilise’ the complainant while minimising the (in)actions of the accused. Second, the article evaluates the proposal in the 2019 Gillen Review that this threshold should be reworded to take account of the accused’s failure to take steps to ascertain the complainant’s consent. It is argued that, while this proposal has the potential to subtly redistribute narratives of responsibility, such potential can only be realised through a change in prosecutorial practice to ensure attention to the ‘steps to ascertain consent’ provision.