The Social Construction of Consent Revisited

Abstract

On 19 January 1994 in Scotland, the Court of Criminal Appeal quashed the rape conviction of Brian Jamieson¹ who had been found guilty of this and other independent crimes in May 1993. Jamieson was immediately released from custody (on bail awaiting the outcome of a continued appeal on a separate charge of attempted murder) to the consternation of the complainer (whose parents expressed their disgust to the press). A guilty verdict is a rare and hard-won occurrence (78 per cent of cases in Scotland going to trial involving a single charge of rape result in not guilty or not proven verdicts).² The ground for the Jamieson appeal was the fact that the judge had told the jury that if a man believed a woman consented and he had a reasonable basis for his belief then he could not be found guilty of rape. The three appeal judges, (Lord Hope, the Justice General, Lord Allanbridge and Lord Cowie) upheld the view that a man cannot be guilty of rape if he honestly, genuinely, believed that the women consented to sex even if the man had no reasonable basis for his belief. The trial judge’s (Lord Osborne) comments were a misdirection. A miscarriage of justice had therefore occurred and the conviction had to be quashed with the very exceptional possibility of a retrial. No retrial was requested.