In this Research Workshop, Dr Eithne Dowds, Mitchell Institute Sabbatical Fellow 2024-25 and Senior Lecturer, School of Law QUB, will discuss some of the themes and core arguments from her proposed book project, which focuses on legal reform to sexual consent in the criminal law.  While consent, or absence thereof, represents the dividing line between permissible and impermissible conduct across a range of jurisdictions, key questions arise in respect of what exactly sexual consent is and how the accused’s mindset should be framed for the purpose of criminal adjudication.  This book situates itself within contemporary trends towards the adoption of ‘affirmative’, or more ‘communicative’ conception of consent, premised on ongoing communication between the parties and positive agreement to engage in sexual activity.  However, the form such standards take varies across jurisdictions meaning that reformers can choose from a range of models, from requiring physical signals of affirmation, to verbal affirmation, to stopping and asking.

The book seeks to focus its attention on conceptualisations of consent that focus their attention on the actions of accused, as encapsulated within the ‘reasonable belief’ standard; that is, the standard requiring the prosecution to prove not only that a complainant did not consent but that the defendant did not reasonably believe that the complainant consented.  Within this context attention can be paid to any steps the defendant took to ascertain the complainant’s consent.

The book engages with attempts to strengthen this latter provision and critically interrogates broader critiques of affirmative consent as ‘unrealistic’, or a ‘mood killer’, by drawing on the notion of ‘communicative responsibility’.  In particular, by further developing the notion of communicative responsibility and considering it alongside the broader literature on rape myths, sexual miscommunication and sexual consent, the book seeks to more fully understand why there continues to be resistance to asking defendants if and how they gained consent.

Attendees will read a draft chapter of the book in advance of the Workshop.