Breaking boundaries? Sexual consent in the jury room

Abstract

By introducing legal tests centring upon concepts of freedom, capacity and reasonableness, the Sexual Offences Act 2003 reflects a deliberate legislative attempt both to provide a clearer structure for jury deliberation on sexual consent and to hold defendants to a higher level of accountability in relation to their belief in its existence. While these developments are well intentioned, it is argued that they may ultimately prove to be of limited effect. More specifically, it is suggested that there is an inherent complexity in the concepts of freedom, capacity and reasonableness, at least in the largely undefined form in which they have been introduced, such that the Act may, in practice, simply result in the proliferation of a new set of malleable legal tests and unpredictable legal outcomes. Drawing on a series of mock jury deliberations undertaken by the authors in which participants were asked, having observed a short rape trial reconstruction, to apply the tests set out in the Sexual Offences Act 2003 in order to reach a verdict, this paper examines the ways in which the concepts of freedom, capacity and reasonableness were interpreted. Bearing in mind the inevitable constraints of the mock jury methodology (in particular its verisimilitude to real juries), this paper suggests that there may, nonetheless, be some valuable lessons to be gleaned from these deliberations about the future application of the law in actual rape cases. © 2017 Wiley. All rights reserved.