Vanessa Scammell

Or did they recognise there was a real possibility of no consent and go ahead anyway?

If a court cannot be sure about what was going on in someone's mind, then the fault element is not proved.

I will use the example of Craig sitting on his castmate's lap, C3, as dealt with in episode 6.

Under the laws applied in 2014, the prosecution needed to prove that Craig either knew C3 wasn't consenting or realised there was a real possibility she wasn't consenting and that he proceeded anyway.

So the focus was mainly on Craig himself.

What did he actually think?

Did he turn his mind to whether his castmate was consenting?

If the magistrate could not be sure about that, if there was a reasonable doubt about Craig's state of mind, then the fault element could not be established.

Later, after 2014, the law shifted the way that question is examined.

The court still considers what the accused says they believed, but it also asks another question.

Was that belief reasonable in the circumstances?

This does not mean the court is simply making it easier to find someone guilty, for prosecution must still prove the charge beyond reasonable doubt.

What changed is the way a claimed belief in consent is evaluated.

So the court may look at what was said or done between the people involved, whether there were signs of agreement or objection, and what a reasonable person in that position would have understood.

In other words, the court is not only asking, what did Craig say he believed?

It is also asking, does that claimed belief stand up when we look at the circumstances objectively?

That is the real difference.

The legal standard of proof has not changed.

What has changed is the lens through which a person's belief about consent is examined.

And in a courtroom, the way a question is framed can matter just as much as the answer.