Consent for the purposes of sexual offences
Critically evaluate the definition of consent for the purposes of sexual offences since the enactment of the Sexual Offences Act 2003, with particular regard to the presumptions in ss.75 and 76
Described by the Home Office Review, Setting the Boundaries, as a ‘patchwork quilt of provisions’, the old law on sexual offences was a hodgepodge of archaic and discriminatory requirements. Despite progressive changes by the court, the law on consent was in particularly confusing. The Sexual Offences Act 2003 (SOA) attempted to clarify the law and whilst setting out several, detailed provisions, as a guide to both jury and judge, there is still a lot to be desired. In a society trying desperately to rid itself of outmoded rape myths, too much discretion has been left to the jury in deciding one of the most central points of all sexual offence disputes: consent.
Historically, consent was not defined by the law. The case of R v Olugboja was the only case to provide a real indication on the question of consent. In this case it was found that the issue itself should be left to the jury, to be given its ordinary meaning, requiring the judge only to direct the jury as regards the difference between “real consent” and “mere submission”. Under the SOA, consent is now defined by s.74 as the ability to consent by choice, with the freedom and capacity to make that choice.
Before progressing further, we can already identify clear issues with such a definition. Temkin and Ashworth criticise the use of the words “freedom” and “capacity” as issues of philosophical complexity, ‘ill-suited to the needs of criminal justice’. These words cannot be intended to include total freedom or choice and are subsequently heavily context dependent: can, for example, the restriction on religious or social freedoms negate an otherwise valid consent? In an experiment conducted by Finch and Munro it was further found that the jury struggle with the interpretation of these words, especially in regard to voluntary intoxication, an issue which we shall touch upon later. It is possible, they note, that the changes effected in the SOA may actually prove redundant in regard consent: for example in the case of R v C, a twenty-eight year old woman with schizophrenia caused severe problems for the courts, resulting in a conviction at first instance, subsequently quashed by the Court of Appeal, and finding at the House of Lords that capacity had been insufficiently defined to the jury due to its ability to fluctuate. Such terms are therefore open to jury interpretation, rendering the matter of consent still open to jury bias.
To tackle such moments, ‘the Sexual Offences Review recommended that there should be... a non-exhaustive list of circumstances where consent was not present, an approach adopted by some Australian States.’ The intent was to serve as a ‘clear indication to the courts and to society at large about circumstances where sexual activity was unacceptable.’ Such an approach has been replicated to an extent by the exhaustive list found in s.76. However, feeling that this was too tougher line, the more comprehensive list of situations is found in s.75: the rebuttable presumptions.
We shall begin with the exhaustive list of conclusive presumptions, found in s.76 (2). In a scenario wherein a defendant ‘intentionally deceived the complainant as to the nature or the purpose of the relevant act; or the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant,’ a lack of consent will be presumed and the mens rea of the act, that the defendant did not believe the complainant consented to the act, will be, by indication, fulfilled. One of the clearest examples of deception as to the nature of the act is found in R v Williams: here, a singing teacher told a sixteen year old girl that he was aiding her with “breathing exercises,” when he did in fact rape her. R v Jheeta is also a key case in this regard due to its discussion as to what deceptions may or may not count. There is a suggestion made by Judge LJ that the jury will interpret this provision narrowly, so that the deception refers only to an act very different to the one they are engaging. For example, in Jheeta itself, the defendant was found guilty only under the general definition of s.74 lack of consent, as opposed to under s.76. This was due to the fact that the claimant knew they were engaging in sexual intercourse, despite her belief that, in doing so, she was following police orders to prevent the defendant’s suicide, or face a fine.
The presumption in regard impersonation also has limitations. The impersonation itself cannot be anyone, otherwise many Lothario roles we see on our TV’s, pretending to be film stars, to seduce a woman, would be guilty of an offence. ‘The person must be personally known to the complainant and the complainant must intentionally have been induced to consent by the impersonation.’
This is a restrictive list and there is no way to rebut such a presumption. This creates issues of compatibility in regard the European Convention on Human Rights (ECHR) Article 6(2), the presumption of innocence, and may well explain Parliament’s reticence to extend the list further. The right to the presumption of innocence can be lost if it serves a legitimate aim, is justifiable, and is a proportionate response to that aim. As Card notes, it would be almost unthinkable for a jury to find a defendant innocent in one of the above scenarios and therefore the loss of Article 6(2) may be justified. Yet realistically, what non-biased jury would find a defendant innocent in scenarios where an individual was unable to communicate consent due to disability, or the defendant had caused the administration of a substance, rendering consent void? Parliament has, arguably, been far too cautious in their determination to leave so many circumstances, rebuttable.
The evidential presumption requires proof to be adduced either to raise the issue with the claimant’s valid consent, or to display a reasonable belief in consent on the part of the defendant. This is a particularly difficult area and has often been privy to jury bias, caused by knowledge of previous sexual involvement and horrendous issues surrounding voluntary intoxication, and individual sexual preference. The list includes violence, threat of violence, unlawful detention, unconsciousness, physical disability and causing the claimant to administer a substance which renders their consent invalid. Herring notes that such rebuttable presumptions could well prove difficult to explain to a jury: for example, if the defendant argues that the threat, or use, of violence came before the couple had made up, leading to a valid consent to intercourse. Would this be enough to rebut the presumption? If so, then this would be very easy to rebut, leaving the door open for repeated offences by abusive partners, so long as they secured a “yes”, however unwilling, before the act occurred: ‘court guidance on the meaning of, ‘sufficient evidence is adduced to raise,’ is eagerly awaited’.
Perhaps the most problematic aspect of this section is proving when acts have been voluntarily undertaken. Parliament have left all of these issues open to rebuttal to cover such moments as voluntary intoxication, along with voluntary sadomasochism or detention. There are countless scenarios where an individual could be seen by the partner to be engaging in consensual sexual intercourse. Yet here we find a problem: what counts as a reasonable belief in consent? Just because an individual has frequently consented to harm for sexual gratification before, does not necessarily mean they do now; just because someone has voluntarily become intoxicated, does not mean their drunken demeanour implies consent.
Voluntary intoxication is a huge issue, as it falls between the areas of capacity to decide, unconsciousness and the inducement of substances. In 2005, Amnesty International found that two thirds of all people asked, believed that an individual who has been drinking is partly to blame for what has happened to them, including jury members, police officers and prosecutors. Such belief’s led to the appalling conclusion in R v Dougal that ‘drunken consent is still consent’, failing to discuss capacity at all. R v Bree readdressed this balance, concluding that drunken consent was still consent, but conceding that consent might disappear before the point of unconsciousness. Wallerstein notes that, whilst this is a move in the right direction, it has not gone far enough. Following this decision, a string of appalling cases have acquitted the defendant in scenarios where the victim was too drunk to remember their response. Such a stance does no more than promulgate rape myths; leading to Wallerstein calling for a drastic reinterpretation of the law to, ‘drunken consent is not consent when the individual is very drunk’.
Rape and other sexual offences bare one of the highest attrition rates of all crimes and this is unsurprising considering the wealth of hurdles a victim must overcome to gain a conviction. From dependence on, to fear of, the perpetrator; to the dread of knowing you will have to recount the experience at trial: the last thing a victim needs is the knowledge that their own refusal may be found wanting. Despite ill-fated arguments by such authors as Reece, Amnesty International has shown that rape myths are still widespread and not enough is being done to tackle this issue.
In conclusion it must be found that Parliament has not gone far enough in directing the jury as regards consent. By not taking a firmer hand and creating a more comprehensive list, Parliament has left the door open to the real possibility of jury bias. In addition, whilst a non-exhaustive list, Card finds there is a whole host of other frequently occurring scenarios, from, ‘threat of dismissal or economic harm, threats of non-immediate violence, abuse of a relationship of power and self-induced mistake as to the nature or purpose of the act,’ which are not addressed in the SOA. In such instances the burden will be on the prosecution, from the start, to prove the absence of consent and of a reasonable belief in consent. In such a “he said, she said” scenario, it seems unthinkable that the jury should be given no more direction than an incomplete list of possible indicators, which may frequently bare no guidance to the matter at hand. Parliament have been too cautious, leaving the UK in a position where almost every form of consent may be rebutted and placing the issue itself predominantly in the hands of a jury which, corrupted by centuries of rape misnomers, may well be blind to the truth.
Card R, Sexual Offences: The New Law (rev edn, Jordans 2004)
Herring J, Criminal Law: Text, Cases and Materials (4th edn, Oxford University Press 2010)
Finch E and Munro VE, ‘Breaking Boundaries? Sexual consent in the jury room,’  26(3) Legal Studies 303
Temkin J and Ashworth A, ‘The Sexual Offences Act 2003: (1) Rape, sexual assaults and the problems of consent’, CLR 328
Reece H, ‘Rape Myths: is elite opinion right and popular opinion wrong?’  33(3) Oxford Journal of Legal Studies
Sexual Offences Review Paper, ‘Setting the Boundaries: Reforming the Law on Sexual Offences’,(The Home Office, 2000)
‘Rape: is a woman’s behaviour to blame?’ (BBC News, 21 November 2005) <http://news.bbc.co.uk/1/hi/programmes/breakfast/4455622.stm> accessed 12 August 2014
Wallerstein S, ‘A Drunken Consent is still consent – or is it? A critical analysis of the Law on Drunken Consent to sex following Bree’,  J Crim L 318
R v Bree  EWCA Crim 804
R v C  UHKL 42
R v Dougal  Swansea Crown Court 435
R v Jheeta  EWCA Crim 1699
R v Olugboja  QB 320 CA
R v Williams  1 KB 340
Sexual Offences Review Paper, ‘Setting the Boundaries: Reforming the Law on Sexual Offences’, (The Home Office, 2000).
 QB 320 CA.
J Temkin and A Ashworth, ‘The Sexual Offences Act 2003: (1) Rape, sexual assaults and the problems of consent,’  CLR 328, 336.
E Finch and VE Munro, ‘Breaking Boundaries? Sexual consent in the jury room,’  26(3) Legal Studies 303.
 UHKL 42.
R Card, Sexual Offences: The New Law, (rev edn, Jordans 2004) 41.
 1 KB 340.
J Herring, Criminal Law: Text, Cases and Materials (4th edn, Oxford University Press 2010) 426.
R v Jheeta  EWCA Crim 1699, -.
(n 6) Card 46.
Sexual Offences Act 2003 S.75(2)(a-f).
(n 9) Herring 429.
 Swansea Crown Court 435.
 EWCA Crim 804.
S Wallerstein, ‘A Drunken Consent is still consent – or is it? A critical analysis of the Law on Drunken consent to sex following Bree,’  J Crim L 318.
(n 6) Card 47.