Catherine Allen analyses the law on consent in relation to sexual offences.
The Sexual Offences Act 2003 (SOA) is regarded as a relatively ‘new’ piece of legislation, despite having received Royal Assent on the 1st May 2004. The Act was an overdue piece of legislation which was intended ‘to provide a clear, coherent and effective set of laws that increase protection, enable the appropriate punishment of abusers and ensure that the law is fair and non-discriminatory’. Although consent is given significant attention in three sections of the Act (ss 74, 75 and 76), the workings of consent under the Act is far from settled. This article will analyse the old and new law relating to consent, with a particular focus on the major non-consensual offences (ss1-4, namely rape, assault by penetration, sexual assault, and causing a person to engage in sexual activity without consent).
The SOA had three objectives: (1) codification of a clear and coherent list of sexual offences; (2) increase the protection of victims and (3) ensure that the law is fair and non-discriminatory. Such aims highlighted the issues surrounding the pre-2004 law. For example, in 1999 the conviction rate for rape was only 1 in 13. Even taking into account the rate of false accusations (calculated at 2-4% today), the rate of conviction was palpably low. What seemed even more astonishing was the fact that the number of convictions was falling in the late 1990s, despite the number of reports increasing. These statistics clearly evidence the inefficiency of the old law to protect victims and to provide an effective set of offences resulting in convictions. This issue was the focus of the Blair government’s concern, as evidenced by the administration’s pledge to help victims obtain justice. A lengthy review process of the then sexual offences legislation was initiated, and the Home Office concluded that the law was ‘archaic, incoherent and discriminatory’. The law was unsatisfactory and piecemeal in character, with provisions being found spread across the SOA 1956, the Sexual Offences (Amendment) Act 1976, and the Criminal Justice and Public Order Act 1994. These statutes were of limited assistance, insofar as there was no definition of rape, or any guidance given on consent.
The arguably ‘archaic’ attitude towards consent under the old law was a major reason for the failure to secure the convictions of perpetrators and protect victims. There was no statutory definition of ‘consent’, thus leaving the issue to common law development. However, even the common law failed to provide adequate guidance as to what amounted to consent. In the case of R-v- Olugboja, The House of Lords established that the jury should be directed to give ‘consent’ it’s ordinary meaning and that they should apply this ordinary meaning to the specific circumstances of each case. Nonetheless, little, if any, guidance as to the meaning of consent was provided other than to apply “combined good sense, experience and knowledge of human nature and modern behaviour”. Further development of the definition of consent was limited; although, the cases of R-v-R and R-v-Malone should be noted, which established that consent is not assumed due to a marriage, and that non-consent did not need to be explicitly stated or communicated by the victim.
A more prevalent issue was in connection with the defendant’s attitude to the victim’s consent. The case of DPP-v-Morgan held that the defendant could rely on a mistaken belief of consent even if unreasonable. Such a defence was inherently hard to rebut, as a result of which victims were effectively faced with minimal protection, while defendants were provided with an ‘easy way out’.
What were the changes that the SOA implemented? The priority of establishing a definition of consent is clear. The ‘Setting the Boundaries: Reforming the Law on Sex Offences’ paper stated that “the law sets the ground rules of what is and is not criminal behaviour, and all citizens need to know and understand what these are. This is particularly important because consent to sexual activity is so much part of a private relationship where verbal and non-verbal messages can be mistaken and where assumptions about what is and is not appropriate can lead to significant misunderstanding and, in extreme cases, to forced and unwelcome sex”. This accounts for the attention given to the issue of consent within the new legislation across three sections.
The fundamental aspect of the non-consensual offence’s actus reus (ss1(1)(b), 2(1)(c), 3(1)(c) and 4(1)(c)) is that the prosecution has the burden of proving beyond reasonable doubt that the victim did not consent. The general definition is given at s74: “a person consents if he agrees by choice and has the freedom and capacity to make that choice”. Whether this definition offers any greater clarity is arguable. Before assessing this question, the presumptive s75 and s76 should be explained.
Section 76 provides instances where conclusive presumptions arise (i.e. incapable of rebuttable by the defendant). If the prosecution proves that the circumstances set out in s76(2) apply, then the complainant did not consent, and the defendant did not have a reasonable belief in consent. The two limited circumstances where this is applicable are: (1) where the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act and (2) where the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant. It may be surprising that the defendant does not have the ability to rebut such presumptions and it could be argued that this infringes their right to a fair trial. This has been compensated for by narrow application of such provisions by the court.
Section 75 provides instances where evidential presumptions arise. If the prosecution establishes, to the requisite standard of proof, that any of the scenarios as set out in s75(2) took place, then the complainant is deemed not to have consented and the defendant is assumed not to have had a reasonable belief in consent. The defendant can rebut this presumption by raising “sufficient evidence” to show that the complainant did consent or that the defendant did have a reasonable belief that they were consenting. The evidential threshold for the defendant to rebut the presumption is very low, resulting in few convictions arising from such provisions.
The narrow enforcement of s75 and s76 are understandable when it is remembered that the defendant’s liberty is at stake. However, it is surprising that neither a complainant being asleep nor unconscious at the time of a sexual act is considered a conclusive presumption. The UK has failed to follow the example set in Canada (R-v-JA), which held that “an individual must be conscious throughout the sexual activity in order to provide the required consent”. Fish J (dissenting in R-v-JA) argued that the requirement would result in an over-conviction of defendants and would intrude into the private lives of individuals, thereby allowing the conviction of long-married couples for sexual assault if they kissed their partner whilst asleep. This seems unlikely. As the majority correctly concluded, such cases properly concern advantage being taken of individuals at vulnerable moments of time, in respect of which it is necessary to establish a common-sense approach to consent. Provisions regarding the complainant being asleep or unconscious should have been incorporated into s76 and amendments thereto would be welcomed.
If neither s75 nor s76 applies, consent is judged by the ordinary standards under s74. Despite the attempt to define consent more readily, the definition fails to provide more certainty than the old law. Section 74 defines consent as ‘an agreement by choice taken by someone who has the freedom and capacity to make that choice’. There are three requirements: first, that there was a choice given to the complainant (i.e. they had more than one option). Second, that they had the ‘freedom’ to make that choice. Lastly, that they had the ‘capacity’ to make such a choice. Little guidance is given as to what constitutes sufficient ‘freedom’ and ‘capacity’. Ashworth and Temkin state that the definition involves two “ideas which raise philosophical issues of such complexity as to be ill- suited to the needs of criminal justice” and Tadros opines that the idea of consent has been made “deeply ambiguous”. Latterly, the courts have been reluctant to provide any further guidance to juries regarding the meaning of the statutory definition, simply stating the need to take a “common sense approach” (R-v- McNally, R(F)-v-DPP) to determine whether the complainant consented. This flexibility of approach may be understandable given the varied factual scenarios that can occur. However, the problem of uncertainty, lack of clarity, and inconsistency of approach remains, which inevitably fails to adequately protect some victims.
Lastly, one beneficial development under the 2003 Act is a disregarding of DPP v Morgan. It is now required to be acquitted that the defendant had not only a genuine but also a reasonable belief in the consent of the victim.