Dr Sorcha Mc Cormack

The core claim of this article will be that where A plans to sexually penetrate another, he has a duty to ensure the penetration is justified. We will argue that these duties are both negative (to avoid certain kinds of conduct) and positive (to ensure that the other party is able to express her consent (richly understood)). Rape trials and legal scholarship too often focus on the victim and her state of mind. This article argues that the focus should be on the penetrator and whether he was justified in acting in the way he did. This requires a careful assessment of the limited circumstances in which consent might provide a justification.

This article proposes a rethinking of rape, with a model that can be applied to other sexual offences. It starts from the proposition that a sexual penetration is a prima facie legal wrong, which requires justification. This imposes an obligation on the person penetrating another to have sufficiently good reasons to justify the penetration. The justificatory reasons are only provided by a reasonable belief in consent, richly understood. Rape should, therefore, be redefined as a sexual penetration without a reasonable belief in the other’s consent. This means the focus in rape trials should not be on whether the victim consented, but rather on whether the defendant had good reasons to believe there was sufficiently rich consent.

Recently, there have been some powerful calls in the media for the law to adopt an affirmative consent model in relation to the law on rape. This article explores this proposal. It argues that while there is much that is attractive about the concept of affirmative consent, it needs considerable unpacking and explanation before it can be accepted. Indeed, if adopted at a simplistic level, it carries considerable dangers. The article presents six ambiguities around what is meant by affirmative consent but concludes with a proposal as to what an appropriate nuanced model of could look like.

Reforms are needed. In this book, we explore how changing the definition of rape will help tackle some of these problems.