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.
1. Setting the Boundaries: Reforming the Law on Sexual Offences (London: Home , 2000).
2. For broader discussion of aspects of the Sexual Offences Act 2003 not addressed in this paper, see Bainham, A and Brooks-Gordon, B Reforming the law on sexual offences’ in Bainham, A et al (eds) Sexuality Repositioned: Diversity and the Law (Oxford: Hart Publishing, 2004) pp 261–296 ; ;
3. Director of Public Prosecutions v Morgan  AC182.
4. Set out under the Sexual Offences Act 1956 (as amended).
5. R v Olugboja  QB 320 per Dunn LJ.
6. Arguably, this represents a reduction in the level of protection afforded to the complainant, since under the previous position, the fact of unconsciousness meant that, as a matter of law, the complainant could not consent; see R v Larter and Castleton  Crim LR 78 and R v Malone  Crim LR 834.
7. Setting the Boundaries: Reforming the Law on Sexual Offences, above n 1. For further discussion of these aims, see also N Lacey ‘Beset by boundaries: the Home Office review of sexual offences’  Criminal Law Review 3.
8. Temkin, J and Ashworth, A The Sexual Offences Act 2003: rape, sexual assault and the problems of consent 2004 Criminal Law Review 328 at 336–337.
9. Ibid, at 338.
10. Finch, E and Munro, V The Sexual Offences Act 2003: intoxicated consent and drug-assisted rape revisited 2004 Criminal Law Review 789. For further discussion on issues surrounding intoxicated sexual consent, see
11. McEwan, J Proving consent in sexual cases: legislative change and cultural evolution’ (2005) 9(1) International Journal of Evidence and Proof 1 ; Temkin and Ashworth, above n 8, at 343–344; Finch and Munro ‘The Sexual Offences Act 2003: intoxicated consent and drug-assisted rape re-visited’, above n 10, at 793.
12. Crown Court Bench Book 16a Sexual Offences Act 2003, ss 75 and 76: Evidential Presumptions (Judicial Studies Board, 2004).
13. Lacey, above n 7, at 12.
14. P Rumney ‘The review of sexual offences and rape law reform: another false dawn?’ (2001) 64(6) Modern Law Review 890 at 900.
15. Temkin and Ashworth, above n 8, at 336.
16. Ibid, at 336.
17. For further discussion of this, see, eg, Koski, D Jury decision-making in rape trials – a review and empirical assessment’ (2002) 38(1) Criminal Law Bulletin 21 ;
18. Byers, E and Wilson, P Accuracy of women’s expectations regarding men’s responses to refusals of sexual advances in dating situations’ (1985) 8 International Journal of Women’s Studies 376 – in this study, fewer than 40% of male and female respondents interpreted a woman’s direct, unqualified refusal to mean that she wanted a man to immediately stop his advances. This scepticism may be attributed to belief in ‘scripted refusals’ by women who wish to engage in sex, but who wish to avoid the appearance of sexual promiscuity: CL Muehlenhard and CL Muehlenhard and ML McCoy ‘Double standard/double bind: the sexual double standard and women’s communication about sex’ (1991) 15 Psychology of Women Quarterly 447.
19. A similar argument pursued by Griew in regard to dishonesty in theft – Griew, E ‘Dishonesty: the objections to Feely and Ghosh’ (1985 Criminal Law Review 341 – has been challenged by the Law Commission on the basis that jurors will not generally assume their own moral standards as the norm (Fraud (Law Commission Report No 276, 2002) para 5.9). Even if true in the context of dishonesty and theft, it is submitted that in the context of sexual behaviour, the jurors’ impulse to use their own standards as the norm for what is reasonable is likely to be more difficult to resist.
20. Temkin and Ashworth, above n 8, at 341–342.
21. Lord Falconer Hansard HL Deb, col 1073, 2 Jun 2003.
22. Ibid, cols 1074–1075.
23. Developments along similar lines in the area of provocation (R v Smith (Morgan James)  QB 1079) have been the subject of much concern, leading to an apparent change of position in the more recent cases of Attorney General for Jersey v Holley  UKPC 23,  3 All ER 371 and R v James and Karimi  EWCA Crim 14,  1 All ER 759.
24. S Cowan ‘Freedom and capacity to make a choice: a feminist analysis of consent in the criminal law’ in Munro and Stychin, above n 2.
25. This is a reduction from the standard jury but there is little conclusive evidence as to the significance of group size in simulation research: Zeisel, H and Diamond, SS Convincing empirical evidence on the six member jury’ (1974) 41 University of Chicago Law Review 281 ; ;
26. Hepburn, JR The objective reality of evidence and the utility of systematic jury selection’ (1980 4 Law and Human Behaviour 89 ; ;
27. Where the evidence is ambiguous or there are case-specific aspects of the trial that interact with particular juror characteristics, there is evidence that juror characteristics may be more relevant; see Hastie, R, Penrod, S and Pennington, N Inside the Jury (Cambridge MA: Harvard University Press, 1983) pp 127–128 ; As a result, it was felt important to take a more proactive position with regard to the gender composition of the groups. This is supported by Ugwuegbu’s study on rape trials; see
28. Imposing this time restriction represents a departure from the realities of a trial but there is ample evidence indicating that ‘real’ jurors would not have taken much longer to deliberate – in Zander and Henderson’s study, the average deliberation was 2.24 hours: M Zander and P Henderson The Royal Commission of Criminal Justice: Crown Court Study, Research Study No 19 (London: HMSO, 1993) pp 203–244; and Kalven and Zeisel found that, for trials lasting 1 or 2 days, 55% of juries took less than an hour to reach a verdict, with 74% completing in less than 2 hours: Kalven, H and Zeisel, H The American Jury (Chicago: University of Chicago Press, 1966).
29. Weiten, W and Diamond, SS A critical review of the jury simulation paradigm’ (1979 3(1/2) Law and Human Behaviour 71.
30. E Finch and V Munro ‘Lifting the veil: the use of focus groups and trial simulations in legal research’, forthcoming.
31. Of course, the fact that participants in this study were self-selecting may mean that they differed attitudinally and cognitively from real jurors: Braunack-Mayer, AJ The ethics of participating in research’ (2002 177 Medical Journal of Australia 471 ;
32. Kalven and Zeisel, above n 28: this study found that 90% of the ‘real’ jurors in their (post-deliberation) survey had reached decisions before deliberation. Hans, Cf Vp and Doob, AN ‘Section 12 of the Canada Evidence Act and the deliberations of simulated juries’ (1976) 18 Criminal Law Quarterly 235 ; ; at 50.
33. Lieberman, JD and Scales, BD What social science teaches us about the jury instruction process’ (1997 3 Psychology, Public Policy and Law 589 at 592.
34. Research indicates a similar level of error or confusion between mock jurors and real jurors and there is evidence that mock jurors become highly involved in the deliberation process: Reifman, A, Gusick, SM and Ellsworth, PC ‘Real jurors’ understanding of the law in real cases’ (1992 16(5) Law and Human Behaviour 539 ; ;
35. In contrast to the mock jurors, there was a tendency amongst focus group participants, who were provided only with minimal sexual consent scenarios, to provide intuitive and categorical responses. For further discussion, see Finch and Munro, above n 30.
36. See E Finch and V Munro ‘The demon drink and the demonised woman: socio-sexual stereotype and juror blame attribution in rape trials involving intoxication’, forthcoming.
37. Kelly, J, Lovett, J and Regan, L A Gap or a Chasm? Attrition in Reported Rape Cases, Home Office Research Study 293 (London: Home Office, 2005) p 96 . In this study, the authors draw attention to the existence of data which indicates a higher incidence of intoxication in reported rape cases (56%). In addition, Forensic Science Service research over a 3-year period has found evidence of alcohol in 81% of samples taken from reported rape cases; see M Scott-Ham and FC Burton ‘A study of blood and urine alcohol concentrates in cases of alleged drug-facilitated sexual assault in the UK over a 3 year period’ (2006 13 Journal of Clinical Forensic Medicine 1071. Of course, in a context in which rape is notoriously under-reported, there is, moreover, good cause to suspect that the involvement of intoxicants (alcohol or drugs) may be higher still amongst unreported cases.
38. Finch and Munro, above n 10.
39. This decision was taken in conjunction with members of the project’s advisory panel and in consultation with a number of criminal justice personnel working in the area of sexual offences.
40. While in the present study these minority views rarely had an impact on the overall conclusion on consent, in a normal jury of 12, these ideas may have attracted more critical mass (eg 3 or 4 people out of 12, rather than 1 or 2 out of 8) and this may have resulted in a greater impact, increasing the confidence of those espousing the minority perspective and reducing further the scope for consensus.
41. This appears to contrast against the tone of jurors’ deliberations during a pilot study conducted under the previous law. In those deliberations, perhaps as a consequence of the lack of a legislative framework or definition of consent, jurors tended to pay less attention to the judicial direction, preferring to invoke their ‘common sense justice’ ( Finkel, N Common Sense Justice: Juror’s Notions of the Law (Cambridge MA: Harvard University Press, 1995) from the outset. It should be noted, however, that only one jury was examined in this pilot. For discussion, see Finch and Munro, above n 34.
42. MacKinnon, C Towards a Feminist Theory of State (Cambridge MA: Harvard University Press, 1989) p 183.
43. Convicting Rapists and Protecting Victims – Justice for Victims of Rape (London: Home Office, 2006).
* An abbreviated version of this paper was presented by Vanessa Munro to the School of Law, University of Nottingham and at the Workshop on Scottish Sexual Offences Reform, University of Edinburgh, in 2006. With the usual caveats, thanks are due to Roger Brownsword for his comments on an earlier draft. The empirical component of the mock jury deliberations undertaken by the authors was conducted with the support of a research grant from the ESRC (RES-000-22-0328). The authors would like to acknowledge their considerable thanks to Miss Kathryn Holdsworth for her help in coordinating the fieldwork and to Alan Clarke, Jennifer Temkin, Jennifer McEwan and Vera Baird for acting as advisors in the early stages of the project.
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