R v Howard (1966) 50 Cr App R 56
Capacity to give consent for the purposes of Sexual Offences Act 1956, s 1
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.
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.
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.