New Zealand Law Journal, October 2022, 310-324

In New Zealand sexual violence trials, the standard reluctant consent direction states that “consent which is given reluctantly and later regretted is nevertheless consent”. The concept of reluctant consent is a vestige of case law which held that consent can be given “unwillingly”, a contradiction in terms which relates to an outdated understanding of submission as consent. Today, reluctant consent is understood as a corollary of the “full, voluntary, free and informed” consent direction, which disallows for the possibility of unwilling consent. However, the idea of “reluctant consent” has continued to attract criticism (see, for example, Elisabeth McDonald Rape Myths as Barriers to Fair Trial Process (Canterbury University Press, Christchurch, 2020) at 297). Further, the Court of Appeal has recently suggested that the reluctant consent direction may need revisiting in light of the Supreme Court decision of Christian v R [2017] NZSC 145, [2018] 1 NZLR 315, which held that consent analysis must be grounded in statutory wording.

In this article, I interrogate the place of reluctant consent, both as a socio-legal concept and as the subject of jury directions, in sexual violence law. I argue that “reluctant consent” is both legally and socially logical, and not a contradiction in terms. However, there are two more substantive problems with the “reluctant consent” direction. (From the introduction). Record #8116