Proving consent

The Ministry of Justice is now seeking comment on the idea that those charged with rape should have to prove consent as well as on proposals to create a legal definition of consent to remove ambiguity and to ban questioning complainants about their sexual history with the alleged attacker. (Discussion document here, or here for the 672KB pdf file).

I posted last month on the Law Commission’s comments on the need to reform court processes in sexual offence trials. As retired Appeal Court Justice Ted Thomas rightly put it:

“the nature and impact of the trial in sexual cases on complainants is a brutalising and distressing experience in which the complainant is effectively put on trial.”

Something needs to be done to ensure that justice is done and that sexual violence is taken seriously and some of the proposals in the Ministry’s paper look promising on the face of it.

But doing away with the presumption of innocence and requiring a higher standard of proof from defendants is another matter. There are flaws with “innocent until proven guilty”, but it is generally thought that it is better to let a few guilty go unpunished then to punish the innocent. Last month Inventory2 condemned the idea as “a piece of liberal lunacy”, saying “(it) goes too far, and should be quickly condemned to the dusbin.”

How about we look at all the other alternatives, implement those that look like they will make a difference, and then revisit the issue of proving consent if we consider this necessary. There is a great deal to gain, but also a great deal to lose.

[Update: MacDoc makes some constructive suggestions about how to improve the trial process.

And in his typically thoughtful way, Bomber at TUMEKE! crows that, “… gone are the days a rape suspect could claim consent from the sparkle in the victims eye.” Some will be surprised to hear that this is what rape suspects argue.]



5 Responses to “Proving consent”

  1. Guilty Until Proven Innocent | MacDoctor Moments Says:

    […] Both Jafapete and Keepingstock have interesting things to say about this. Tagged in: Consent, Justice, Rape, […]

  2. Inventory2 Says:

    Excellent post JP – I have reiterated my thoughts on this on Keeping Stock, and am taking the liberty of posting the link here as the link to my former post in substantive thread is broken. Yes, we must look for ways to lessen the trauma for victims of sexual assaults, but this proposal from the Justice Ministry goes way too far.

  3. macdoctor01 Says:

    There is an unspoken assumption that increasing the conviction rate of rape cases will induce other women to come forward and lay charges. I think this is wishful thinking. Only when the entire process is substantially less threatening will women come forward. That includes being able to lay complaints with specially trained female police officers and complete anonymity in the court proceedings as well as the trial arrangements I have mentioned on my blog. Complete media blackouts until conviction would also be helpful (but not popular with the media!)

  4. roger nome Says:


    For once we agree. My friends who work at Rape Crisis tell me that many women are afraid to go to the police (a woman who has just been raped by a man isn’t necessarily going to be wanting to talk to a burly cop), and once the woman goes to the police they are often given the cold shoulder/are dissuaded from pursuing the charge.

    Both these things need to change.

  5. Inventory2 Says:

    roger nome – you won’t get any argument from me on that point either. The discussion paper about shifting the burden of proof is another matter altogether.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: