R v Howard (1966) 50 Cr App R 56
Capacity to give consent for the purposes of Sexual Offences Act 1956, s 1
Facts
The victim was a 6-year-old girl who was sexually assaulted by the defendant in her home. On the night in question, the defendant entered the victim’s home and assaulted her leaving semen stains, pubic, other hairs and a button at the scene. Several nights later, the victim’s parents heard somebody attempting to climb into their house through an upstairs window. They gave chase and the defendant was arrested. The defendant denied that he had previously been in the home. However, all of the samples previously left matched him and he was found guilty of attempted rape and burglary.
Issues
The court was of the view that there was little of concern with the first instant judgment but believed that a degree of clarification was necessary in regard to whether a girl under the age of sixteen was able to consent to sexual intercourse.
Decision/Outcome
In order to bring a charge of rape, or as here, attempted rape, it was necessary for the prosecution to show that not only had sexual intercourse occurred in terms of penetration, but also that the victim did not consent to that penetration. Where the child was as young as the one in this judgment there was no issue as to whether she could consent. However, where the girl was significantly older, but still under the age of 16, the jury must be directed that the girl can would not have given consent if she physically resisted or, if she did not, her understanding and knowledge were such that she could not decide whether to resist or consent.
Updated 20 March 2026
This article discusses R v Howard (1966) 50 Cr App R 56 in the context of the Sexual Offences Act 1956. Readers should be aware that the 1956 Act has been wholly repealed and replaced by the Sexual Offences Act 2003, which fundamentally reformed the law of rape and sexual consent in England and Wales. Under the 2003 Act, consent is now defined in s 74, and ss 75–76 introduce evidential and conclusive presumptions about consent. Critically, s 5 of the 2003 Act creates the offence of rape of a child under 13, in respect of which consent is legally irrelevant. For complainants aged 13–15, consent remains relevant to the actus reus but the separate offence of sexual activity with a child (s 9) applies regardless of apparent consent. The common law approach to capacity to consent discussed in Howard — particularly the direction that a jury consider whether a young person had sufficient understanding to decide whether to consent — has been substantially superseded by the 2003 Act’s statutory framework. The case therefore retains historical and doctrinal interest, but it does not accurately represent the current law and should not be treated as a reliable statement of the law as it stands today.
