Law governing rape and sexual assault

The law governing rape and sexual assault is contained in the Sexual Offences Act 2003 (SOA 2003) which came into force on 1st May 2004. ‘The Sexual Offences Act 2003 was brought in to try and reform the law on sex offences so that it would reflect changes in social attitude, and that it would also bring the then existing laws regarding rape up to date so that it would offer greater protection to children and vulnerable adults’ [1] . The SOA 2003 also generated a number of new offences such as assault by penetration and offences against children, and it also reviewed the maximum penalties for certain offences and made sure that the penalties were amended if needed, sending out a strong message to the public that sexual crimes will not be tolerated. Therefore this new legislation should be safeguarding the public against sexual crimes, however sometimes this is not altogether straight forward and with the statutory definition of consent being prone to a lot of criticism one could suggest that there are still a lot of problems surrounding the issue of consent. Sexual violence in England and Wales often goes unreported by both female and male victims. ‘In 2001 a study found that only 15% of rape cases had been reported to the police, and 40% of the victims who had suffered rape had told no one about it’ [2] . The conviction rate for rape has decreased over the years and still is decreasing. Many victims are raped by someone they know, this could be a family member or even their partner, and in these circumstances it is normally one word against the other, with little forensic evidence or proof available. Sometimes the victim is made to feel like it is their fault or that they deserved it. ‘Research has been done by Amnesty International over the years and it has been found that a third of the general public believe that a woman is partially or totally responsible for being raped if she has behaved in a flirtatious manner’ [3] . ‘Similar attitudes exist also in relation to what the woman was wearing at the time of the attack, how much alcohol had been consumed and also whether the woman had clearly said no to the man’ [4] . It is clear to see that even with a new definition of consent, people are still unaware of what is considered as consent and what isn’t.

Before the SOA 2003 came into force, there was no statutory definition of consent. S.74 of the Sexual Offences Act now states that a person consents to sexual activity, ‘if he agrees by choice, and has the freedom and capacity to make that choice’. Consent can sometimes be a difficult concept to define. However there are some instances where certain sexual activity may give rise to criminal liability regardless of whether the parties consented. This includes; sex with an adult relative, of which carries a maximum two year prison sentence, also mouth to mouth kissing between consenting fifteen year olds could be classed as sexual assault. The SOA 2003 also developed and extended the concept of ‘invalid consent’ previously found in the Sexual Offences Act 1956 relating to the inability of a person under 16 to give valid consent. The new law states that no child under the age of 13 can give any valid sexual consent whatsoever. This was brought in to protect children from being preyed upon by paedophiles. However if the child is over the age of 13 then there is still no relaxation in the law that restricts the ability of those aged 13-16 to engage in sexual consensual sexual activity.

‘The Sexual Offences Act 2003 has three important provisions relating to consent which apply to sections 1-4, namely rape, assault by penetration, sexual assault, and causing a person to engage in sexual activity, they are:

A statutory definition of consent

The test of reasonable belief in consent

The evidential and conclusive presumptions about consent and the defendant’s belief in consent’ [5] .

Under the old law which was the Sexual Offences Act 1956 there was no precise definition of consent, only a vague idea of how consent could be given. Under the 1956 Act, consent seemed to be just a word that the courts considered to be ordinary, therefore the word consent lacked much meaning and was hardly ever scrutinised. In the case of Olugboja [1982] QB 320 it concerned two girls who were in bad company with some men who were taking advantage of them, one girl was raped and the other girl allowed sex to take place. The Court of Appeal rejected submissions that consent in cases of rape could be vitiated only by physical force, incapacity, threats of violence, coercion or bribery as to the essential nature of the act in question. The Court held that instead that where there was an issue of consent, the jury should decide as to whether the claimant consented in the ‘ordinary meaning’ of the word, however to criticise this, the word consent can mean anything from actual desire on the one hand or reluctant acquiescence on the other. The question of consent should not be left to the jury without some clear direction on consent issues from the judge. The jury had no right to define the meaning of consent. ‘The ruling in this case was deemed to be extremely problematic, the distinction between ‘reluctant acquiescence’, which amounted to consent, and ‘mere submission’, which did not, inevitably gave rise to uncertainty’ [6] . ‘For example if a manager persuades his employee to have sex with him by threatening to sack her if she refuses then this could at first look like a case of submission by the employee under duress, however it would be different if perhaps the boss had ample grounds for sacking her and that the employee had suggested sex with her boss instead of him dismissing her, or that she had sex with her boss to secure a promotion rather than from fear of dismissal’ [7] . This situation gives light to the difficulties that surround the problems between involuntary submission and reluctant acquiescence, as one jury could easily decide it was involuntary submission whilst another jury could decide it was reluctant acquiescence.

Even with the definition in s 74 of the Sexual Offences Act 2003 it still continues to be a grey and sometimes complex area. ‘In the case of Barbour v HMA 1982 SCCR 195 Lord Stewart, in his summing up, indicated that the woman, who had not resisted sexual intercourse with the man in question because she was very afraid of him, had been asked when being cross examined, whether or not she had consented, her reaction was ‘it depends what you mean by consent’ [8] . ‘Therefore it is easy to see how the ambivalence in the concept in consent is exploited by the defence counsels in rape cases’ [9] . ‘It is also easy to see how the juries are very easily distracted away from the central question of whether she engaged in sexual intercourse freely by focusing on whether her words and actions indicated agreement’ [10] .

Another complex area surrounding the problems with consent is consent issues within established relationships. Most of the general public would perhaps not think that every year hundreds of women and men are being or have been sexually assaulted or raped by their husband or partner. Rape within established relationships often goes unreported mainly due to the assumption that a wife or partner automatically consents due to the nature of the relationship. Another problem is that the offence of rape is unfortunately sometimes more believable when accompanied by injury or harm. Thankfully ‘Gone is the old law which stated that a woman automatically gives consent to sexual activity just because she is his wife R v R [1991] 2 ALL ER 257 [11] , a woman does not always consent to sexual intercourse just because she allows her partner to kiss her or cuddle her. Nevertheless the courts still recognise that the dynamics of consent within such a relationship may differ from those between couples on an occasional date’ [12] . Presumed consent is a topic that has many people confused. It is a common and presumed occurrence for a man to kiss, hug or caress his partner or wife, as nobody would really expect him to ask for permission to kiss or touch his wife/partner, or to ask for permission whenever sexual intercourse is initiated. However these presumed occurrences should not be taken for granted within every marriage or relationship. Every woman has the right to refuse consent to sexual activity, albeit whether she is in a relationship/marriage with that person or not. Problems start to arise because of the ambiguity of the word ‘no’ and that sometimes men believe that when a woman says ‘no’ to the sexual activity, she actually means ‘not yet’ or ‘not here’ [13] . There have been hundreds of cases that the courts have had to deal with where these situations have arisen just because the man had thought that the woman was saying ‘no’ as part of a teasing game or perhaps that she was flirting with him or dressed provocatively’ [14] . A big percentage of people think that where rape or sexual assault has taken place within a relationship or marriage then the issue of consent should be black and white, however this is not true, and the issue of consent is never black and white. The courts should look at the evidence surrounding the incident and also the relationship between the defendant and the claimant. Is it fair for a man to be convicted of rape, if the claimant had agreed to a night of alcohol induced sexual activity, but upon wakening the next morning was unaware that any sexual intercourse had taken place, due to intoxication? This situation would probably have a different trial outcome of that of a man who had dated a woman a couple of times, and on this particular night she had drank a bit too much alcohol and he had taken advantage and had sexual intercourse with her. It is very important why the courts look at the evidence surrounding their relationship as there are instances where women have been known to regret their actions and accuse the defendant of rape rather than admit their mistake. However each individual deals with rape in different ways, and there are rapes that go unreported through fear of there being no case to answer, just because the woman cannot remember saying no [15] . In the case of R v Hysa [2007] EWCA Crim 2056 ‘the complainant had been drinking heavily and smoking cannabis when the alleged rape incident took place’ [16] . ‘The complainant stated in court that she did not want to have sex and that she did not think she had done so willingly neither did she think that she had consented, however she could not remember because she was drunk’ [17] . The trial judge ruled that there was no case to answer only because the evidence as to consent was not clear, however the Court of Appeal allowed a prosecution appeal against the ruling, so that the jury could give regard to the circumstances of the case [18] . The defendant was eventually convicted of rape. This case shows why women, after being raped whilst intoxicated are still fearful of not being believed just because they cannot remember saying ‘no’. Yes it is very important for the courts to look at the evidence surrounding their relationship; however this could be deemed as very impartial on the grounds that the victim’s previous acceptance of sexual intercourse should not be assumed to be acceptance of subsequent consensual sex. It is therefore vital that each case is considered on its on merits taking into account the nature of the relationship but also the circumstances of that particular incident.

‘Section 75 of the Sexual Offences Act 2003 provides a list of circumstances in which it is presumed a person did not consent’ [19] . ‘These include:

Where the victim was asleep or unconscious, or could not communicate consent because of a physical disability; and

Where the victim had been given a substance without their consent that was capable of causing them to be overpowered at the time the alleged rape took place, this includes the scenario when a victims drink is spiked’ [20] .

These evidential presumptions may arise if the victim was physically incapable of consenting or that she does not have the mental capacity of an adult F v West Berkshire Health Authority [1989] 2 ALL ER 545. Or that she was so intoxicated that she fell unconscious through alcohol at the time of the alleged incident or if she was given drugs without her knowledge. ‘The above circumstances however do not include where the victim was voluntarily intoxicated’ [21] . If the victim had deliberately had too much to drunk so therefore cannot remember anything about giving consent to the sexual intercourse then it would be left to the jury to decide whether she had given consent or not. Central to this argument would be whether or not the complainant had the capacity to give her consent. ‘However concerns were raised after the case of R v Dougal [2005] Swansea Crown Court the judge directed the jury to enter a ‘not guilty’ plea purely because it was unable to prove that the complainant had not given consent due to her level of intoxication’ [22] . ‘This case has undoubtedly raised concerns amongst some about the effectiveness of the Sexual Offences Act 2003 and caused them to question whether or not the Act offers adequate protection to persons at times of particular vulnerability’ [23] . ‘The absence of a clear definition of capacity has led to a lack of clarity the result of which has been that not all cases that should have gone to the jury have done so’ [24] .

Many advocates over the years have tried to argue whether it is correct for a man who rapes a heavily intoxicated woman after she passes out should be classed as a rapist for the rest of his life. ‘A recent rape case in Australia caused controversy with certain Judges, who claimed that the offender in the case should perhaps not be given a prison sentence purely because they classed what the defendant did as “technical rape" because the claimant had agreed earlier in the night to have sex with the defendant, however, she fell asleep before the defendant penetrated her’ [25] . The law is very clear that an unconscious person cannot give consent. If a judge has this view on certain rape cases then is it any wonder that so many cases of rape still go unreported every year. So the question still is, why are there still certain issues surrounding capacity to consent. It is true that more young woman and men are binge drinking leaving themselves sometimes vulnerable to the perpetrators of rape, which does add further problems when the case goes to trial.

Sometimes it is alleged that a complainant in a rape case may not have been mentally or physically capable of giving consent due to being seriously intoxicated by drugs or alcohol or mentally impaired. The Sexual Offences Act 2003 does not give a definition of capacity. Surely this needs to be changed as the courts have no definition of capacity. ‘Therefore they have to look for some kind of assistance at common law, although it is abundant that there are still no clear principles governing whether a person had the capacity or not to consent to sexual activity’ [26] . In the case of R v Morgan [1970] VR 337 ‘the test for capacity to consent to having sexual relations required a person to have “sufficient rudimentary knowledge of what the act compromises and of its character to enable her to decide whether to give or withhold consent"’ [27] . ‘In a public law decision X City Council v MB [2007] 3 FCR 371 the common law test of capacity was regarded as being that a person will thus lack capacity to consent if she or he has no real understanding of what is involved, or has such limited knowledge, awareness or understanding as to be in no position to decide whether to agree’ [28] . Therefore the threshold of the word ‘capacity’ seems to be a low one. One would seem surprised at this as capacity is obviously a very important issue when there is a situation that includes voluntary intoxication, for example an incident where the claimant has voluntarily intoxicated herself to the point where she has no control over what she does or does not do. In the case of R v Bree [2007] EWCA 256 [29] the complainant accused the defendant of having non consensual sex with her after an evening of heavy alcohol drinking. ‘She could not remember much of the evening and her recollection of the evening had considerable gaps in it’ [30] . ‘The defendant’s case was that the hazy recollection was either due to the effects of the alcohol which made her forget, that she had consented or that she was lying’ [31] . ‘ Recent statistics have shown that nearly half of young men still think that having sexual intercourse with a woman who is too drunk to know what is going on is in fact not rape, and 46% of men between the ages of 18 to 25 also do not consider it rape if the woman changes her mind during sex’ [32] .

Freedom of choice is a comparative concept. Few choices in life are wholly free or wholly voluntary. ‘Despite three decades of intense scrutiny and reform, the law of rape still fails adequately to protect the sexual freedom of women’ [33] . ‘Terms such as freedom, choice and capacity can be and are interpreted in radically divergent and often minimalistic ways’ [34] . ‘In the specific context of the Sexual Offences Act 2003, it is clear that these terms are not intended to imply absolute freedom or choice, however it still remains at large as to how much liberty of action the definition satisfies’ [35] . ‘A woman may agree to have sex with her employer because she fears that if she doesn’t then her career may not progress as she wishes, but in another situation a woman reluctantly chooses to have sex with her boyfriend because if she doesn’t then he has threatened to kill her dog’ [36] . ‘Would it be fair to suggest that both of the above situations are similar regarding freedom or choice? One would suggest not, as in one situation there is a woman who is obviously in an unpleasant relationship and is having sex through fear that if she doesn’t then her partner will do something nasty, and in the other situation the woman is purely having sex for selfish needs only. So yes it is only fair that many juries would react differently to a complainant who chose to have sex with her boss in order to advance her career’ [37] . ‘The jury would have to take into account the nature of the threat along with the complainants age and mental capacity, and whether there was any realistic possibility that the threat would be carried out and whether the complainant could have taken steps to defuse the situation and whether in the light of these factors was she therefore free to give or withhold consent’ [38] . Therefore looking at the definition of consent it is obvious that these kinds of circumstances throw the term ‘freedom’ and ‘choice’ into disarray.

S 76 (2) of the Sexual Offences act 2003 creates a rule of law and not a mere presumption. The situations which give rise to a conclusive presumption are;

‘The defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;

The defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant’ [39] .

There have been problems with s76 SOA 2003. The presumptions may be conclusive but one would ask why is it that only s76 is conclusive and not s75 SOA 2003. ‘A more pressing question, however, is whether obtaining compliance by fraud or deception is worse than other ways of avoiding true consent, such as using threats or violence, administering drugs, or taking advantage of a sleeping or unconscious person’ [40] . ‘Obtaining compliance by using violence or threats of immediate violence seems no less heinous than doing so by deception and yet the SOA 2003 creates a conclusive presumption in the latter case and only a rebuttable presumption in the former’ [41] . One could argue as to what scenarios s76 SOA actually covers. In particular where does one draw the line between a deception as to the nature and purpose of the relevant act and one as to the mere circumstances in which it occurs? In the case of R v Williams [1923] 1 KB 340 a normal16 year’s old girl who had not been told anything about sexual matters was tricked into having sexual intercourse by a professional because he told her that it would improve her singing voice. It was held that because she could not have possibly consented to sexual intercourse, what she did consent to was him helping her to improve her voice by a certain procedure. It is clear that she did not have the freedom to choose whether or not to have sexual intercourse because she was not aware of what sexual intercourse was, and not because of the presumption in s76 SOA 2003; however the courts would not look at her freedom to choose as they should, they would just convict under s76 SOA 2003. The case of Williams is a tragic case of deception however there have been cases that have not been classed as falling under s76 which many critics have argued should have. ‘One critic in particular argued that if a man does not inform the woman before they engage in sexual intercourse that he has a sexually transmitted disease then he should be guilty of rape’ [42] . ‘This is not a realistic view as this would also make a man guilty of raping his wife if he withheld information that he had been having an affair for years, but he knew that if he told his wife then she would leave him [43] . However one might understand why certain critics share that view.

Although the Sexual Offences Act 2003 gives a definition of consent, it is evidently not as clear cut as the courts would like. Therefore it has been very problematic and the SOA 2003 is abundantly in need of a clear definition of capacity. Surely with such a vague definition of consent and no definition of capacity then this Act cannot be left without some amendment. ‘Not long after the SOA 2003 was introduced, the Home Office did start to investigate what amendments it could make’ [44] . ‘They have recently issued a fresh consultation paper in which specific questions are raised about the adequacy of the definition of capacity under s74 SOA 2003, to the extent that further refinement of this definition may assist jurors in overcoming some of the difficulties that have been problematic in the past’ [45] . Social attitudes are sometimes deemed to be very negative; however this is not surprising considering the amount of rape cases that have been thrown out of court due to their being no real understanding of the definition of consent. Despite recent improvements the law of rape is still unclearly defined and the subject matter of s74 is still a topic for manipulation and prejudice and unfairness.

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