Issue of Consent in Sexual Offences

The longstanding core principles and standards concerning rape and sexual offences were codified in the Sexual Offences Act (1956) described by the Setting the Boundaries Review (2000) as a “patchwork quilt of provisions”, where rape governed the s.1 of the act itself. Having figured out the ambiguities in the act, the government published a White Paper titled: Protecting the Public — Strengthening Protection against Sex Offenders and Reforming the Law on Sexual Offences (2002), followed by the Sexual Offences Act of 2003 made enforceable from May 2004 onwards. The reformed act primarily dealt with issues of rape, assault by penetration, sexual offences, offences against children and incestuous family relationships in order of their severity. This essay predominantly aims to discuss the issue of rape and the element of consent which sits at the heart of the fundamentals that rule the subject of rape.

After considerable evolution over the centuries of the definition of rape, it is currently considered a severe statutory offence under the Sexual Offences Act (2003) and is defined as the intentional penetration of the vagina, mouth or anus without the consent of the complainant with the defendant holding a reasonable belief that the complainant does not consent to the act. The actus reus and mens rea of the crime can be categorized within two components, the actus reus being the penile penetration of the vagina, anus or mouth, and lack of consent by the victim and the mens rea being the intention to penetrate, and a lack of reasonable belief in consent. Both these elements have to be examined and considered by the courts before administering a conviction against the defendant. Rape is largely based on the notion of consent and the absence of it. According to s.74 of the Act “a person consents if he agrees by choice, and has the freedom and capacity to make that choice.”[1] The Act further delves into various circumstances that generate the concept of non-consent under “evidential presumption” which include, (a) violence against the victim; (b)violence against another; (c)victim unlawfully detained; (d)victim asleep/unconscious Larter v. Castleton (1995)[2]; (e)physical disability; (f)drugs without consent unless taken voluntarily R v. Malone(1998) [3]and R  v. Camplin (1845)[4]”[5]. Moreover, the parliament in s.76(2) of the Act specifies “Conclusive presumption about non-consent” which includes: “(a) being deceived by D as to the nature and quality of the crime; R v. Flattery[6] and R v. Tabassum (2000) [7]and (b) D impersonating someone personally known to the victim; R v. Elbekkay (1995)[8]”. Section 75 of the act deals with rebuttable presumptions those of which are held true until proven otherwise, however, s.76 deals with irrebuttable presumptions which are to be taken as is regardless of the evidence supporting the contrary. It can also be argued that s.76(2)(b) deems to be of a subordinate nature reflecting the burden of doubt that falls upon the prosecution which has to ascertain that the impersonation compelled the complainant to provide their consent. Albeit if the defence is successful in dismantling this proof and creating a doubt regarding the deception of identity, it is sufficient for the presumption to not hold any ground.

Contrary to popular belief, it is not required by the law for rape to be an act of projecting violence in order for it to be considered an offence. In R v. Olugboja (1982)[9] the complainant did not resist, struggle or scream and the appellant continued to have sexual intercourse with her, however, her compliance out of fear and the act of crying were adequate to uphold the conviction of rape against the appellant. Dunn J said: “It is not necessary for the prosecution to prove that what might otherwise appear to have been consent was in reality merely submission by force, fear or fraud. The jury should be directed that consent, or the absence of it, is to be given its ordinary meaning and if need be, by way of example, that there is a difference between consent and submission; every consent involves a submission, but it by no means follows that a mere submission involves consent.”[10] Therefore, lack of consent can exist with or without the use of force. A similar example is vividly demonstrated in McFall (1994)[11] where the defendant, D kidnapped his former girlfriend, V at gunpoint and drove her to a hotel, where they had sex. V faked orgasms throughout the intercourse out of fear that D might shoot her if she would not comply. D unlawfully detaining V and intimidated her with a gun he claimed was loaded. This was ample evidence that V’s consent was involuntary hence the conviction of rape was held against D. A stark variation is formed between “apparent” and “real” consent regarding sexual activity in AC (2012) EWCA Crim 2034 confirmed by the Court of Appeal. In the case where the defendant continues to have sexual intercourse with the claimant on the basis of an “apparent” consent, the requirements for the actus reus of the crime has been believed to be fulfilled. As per s.79(2) “penetration is a continuing act from entry to withdrawal”, the classic examples of which includes Kaitamaki (1984)[12] denoting that the defendant previously given the consent to penetrate is bound to withdraw immediately after consent is revoked. This ruling was reinforced by the Court of Appeal in Cooper and Schaub (1994)[13] where the claimant, V met two defendants in a pub who she later has sex with. V withdrew consent during the act which the defendants failed to comply with and hence raped her. While advocating a verdict, the jury asked the judge, “If we find that initially there was consent to intercourse and this was subsequently withdrawn and intercourse continued, does this by law constitute rape?”. The judge answered positively after which the jury convicted the defendants of rape. Although these convections could not be upheld in the CA, it was acknowledged that the judge had accurately directed the jury. 

The mechanism of consent typically constitutes the nature of the act itself negating extraneous factors that may influence the perception of consent. This gives statutory effects to decisions in cases such as R v. Linekar (1995)[14] followed by R v. Jheeta (2007)[15]. In R v Linekar a prostitute agrees to have sexual intercourse with the defendant on the agreement that he would pay her in return. The defendant however, failed to make the payment. It was put forth that fraud on behalf on the defendant did not abort consent as he did not deceive the claimant regarding the nature and quality of the act rather the external factor which was the payment and hence did not constitute as rape. Correspondingly, in R v. Jheeta (2007), the defendant, D was in a consensual sexual relationship with the claimant, C. A few months into the relationship, D began sending threatening anonymous messaged to C who was unaware and confided in him. D saw this as an opportunity to prolong the relationship. C decided to file a police complaint and D said he would do it on her behalf. C then apparently received various text messages from the police officers involved. C was not aware of D’s involvement and tried to break off the relationship multiple times over a course of two to three years. After every attempt, she would receive a message from a “police officer” forcing her to engage in sexual intercourse with D or she would have to face a fine. She conformed to the threats. Although D could not be convicted under the assumption of having intercourse under the false pretence of impersonation but he did plead guilty on the irrebuttable presumption that C had not consented to intercourse. In R v. Jheeta (2007) Sir Igor Judge said, “The ambit of s.76 is limited to the “act”. In rape cases, the “act” is vaginal, anal or oral intercourse. Section 76(2)(a) is relevant only to the rare cases where [D] deliberately deceives [V] about the nature or purpose of one or other form of intercourse. No conclusive presumptions arise merely because…of common lies by [D].”[16] This statement by Sir Igor Judge makes it clear that the deception must relate to the nature and purpose of the intercourse itself, not personal trivialities of the parties. A victim is therefore not protected against all deception. Hence, it can be inferred that an impersonation of someone known personally to the victim such as their husband, boyfriend and fiancé will serve as a ground for a conviction of rape such as in Elbekkay (1995). Likewise, clear deception about the nature of the act such as in Flattery (1877) where the victim thought that intercourse was surgery to cure her fits and Williams (1923) where the victim thought that intercourse would help her vocal performance demand for a criminal offence. However, the defendant deceiving the claimant about his financial statues or professional capabilities by no means stems close to a criminal conviction for rape as the nature, purpose and quality of the act of sexual intercourse remains unaffected despite peripheral rudiments.

The doctrine of “informed consent” was integrated in the legal system in the cases of Dica (2004) [17]and Konzani (2005)[18], as non-fatal offences. These cases dealt with defendants who were HIV positive and proceeded to have unprotected penetrative sex with the claimants without providing them with prior information of their disease. Although this can lead to a conviction under s.20 of the Offences Against the Person Act (1861) as inflicting grievous bodily harm (GBH) to the claimant by exposing them to the risk of contracting a potentially fatal illness, the defendant could not be convicted of rape as the claimants were in no way deceived about the nature or quality of the act itself. This principle was reinforced in B (2006), where the question regarding the conviction of rape was answered in the negative.

Moreover, numerous cases illustrate that various scenarios can suggest the absence of consent and free choice. A victim who is sleeping cannot provide consent under s.75(2)(d) such as in Larter and Castleton (1995). D is charged with rape for having sexual intercourse with V, a 14-year-old girl, who was sleeping. It was proved that V had demonstrated lack of consent and proving her dissent would not have been of any value as it was enough that she did not assent. The facts suggested an ‘evidential presumption’ regarding no consent on part of V which had to be rebutted by D in order to dismiss the conviction. Section 75(2)(d) was invoked in Ciccarelli (2011)[19], a case involving sexual assault, contrary to s.3 SOA 2003. D attended a party along with his girlfriend and the claimant, V, who was very drunk. D, his girlfriend and V took a cab back to D’s flat where V slept in a spare room. During the night, D entered V’s room and lay next to her, kissing her forehead and rubbed his penis against her bottom. When D tried to lie down on top of her, V woke up and screamed at D to get off; he complied. D was then charged with sexual assault. The trial judge highlighted an evidential presumption communicating to the jury that since V was asleep and D was aware of this, it created a rebuttable presumption that V was not in a position to consent and D had no reasonable belief that V was consenting. He also adjudicated that there was no evidence to refute the presumption and so, D was proven guilty and appealed contesting that he reasonably believed that V was consenting to the touching despite being asleep as she had been giving him cues at the party earlier. This conviction was dismissed by the CA as no facts were provided to support the rebuttal. Additionally, under s.75(2)(f) Camplin (1845) sheds light on cases of intoxication and regards intoxication as a state in which consent cannot be given especially if the intoxication is voluntarily induced by the defendant himself. Here, D was convicted of rape after intoxicating a woman in order to take advantage of her state and engage in sexual intercourse with her. The rebuttable presumption assumed that the claimant was not consenting as she was stripped off of her right of freedom of choice and freewill due to her inebriated state and the burden of proof lay on D to prove otherwise. It should be noted though, that this evidential presumption does not incorporate in situations where V has become drunk, drugged or intoxicated out of his/her own free will, as opposed to through use of force or some dishonesty on the part of D. Nevertheless, if D takes advantage of V whilst he/she is in this condition, this could still be rape as demonstrated in the pre-2003 Act case of Malone (1998). A 16-year-old girl, V, got drunk to the extent that she was unable to walk and had to be driven home. Her neighbour, D, was asked assist in carrying her home after which her friends undressed her and put her to sleep. D decided to stay with V, presumably to make sure she did not choke and vomit. However, D, claimed that he then climbed on top of her and had intercourse before she could kick him off. D was convicted of rape and appealed on the ground that, he did not have intercourse with her on the basis of fraud or reception and hence no protest on behalf on V meant consent was present. The Court of Appeal disagreed and dismissed the appeal. The leading case is Bree (2007) where D is alleged to have raped V whilst V was voluntarily intoxicated. The Court of Appeal nullified D’s rape conviction because the jury had not been adequately directed on the issue of V’s consent. The facts directed that V, although very drunk, had become intoxicated voluntarily and retained the capacity to consent. Consequently, neither s.75(2)(d) not 75(2)(f) could be used as a pragmatic approach. The case therefore hinged on whether the Crown had proved that V was not consenting at the time of the alleged rape, an issue which could not be proven given the inadequacy of the trial judge’s directions, and therefore the conviction was unsafe. In Bree (2007) Sir Igor Judge aforementioned, “a drunken consent is still consent. Where [V] has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape.”

Prior to 2003, the defendant according to the law, could argue the he had an honest nut unreasonable belief in consent regardless of how ridiculous his belief of consent may be. This reformed in the SOA 2003 and according to the current law it is required for the defendant to prove that he had a reasonable belief in consent. The word “reasonable” entails a “reasonable man test” where the jury must therefore ask themselves, “did the defendant believe that his girlfriend consented and would the reasonable person agree?”. The jury will overlook intoxication if the defendant was drunk at the time and simply ask the same question, whether his belief was reasonable, as seen in Woods (1982)[20] and Fotheringham (1989)[21]. This rather stringent test maintains a strong foothold for the victim as it restricts the defendant from using his voluntary intoxication as grounds to argue his belief of genuine consent on part of the victim although this might also be true.

At the foundation of rape lies, consent and its workings. As times progress and we enter into the new century the law shapes itself to suit the modern concepts and ideas.  Legal bodies ensure the law is doing its designated job of covering all legal elements therefore updating the present law governing rape under the Sexual Offences Act 2003 and deeming it fit for its legislative purpose, particularly in relation to ascribing clear actus reus and mens rea elements for the offence. Further developments are required to maintain the standard of law as a governing body and to safeguard the rights of citizens and individuals, but it is safe to say that those in power are actively perusing to achieve a particular standing in making the law as clear, valid, reliable and cut throat as possible.

Bibliography

1. AC (2012) EWCA Crim 2034
2. Ciccarelli [2011] All ER (D) 23
3. Cooper and Schaub [1994] Crim LR 531
4. Fotheringham [1989] 88 Cr App R 206
5. Kaitamaki [1984] 2 All ER 435
6. Larter v. Castleton [1995] Crim LR 163
7. McFall (1994) Crim LR 226
8. R v. Camplin [1845] 1 Cox 22
9. R v. Dica [2004] 3 All ER 593
10. R v. Elbekkay[1995]  Crim LR 163
11. R v. Flattery [1877] 2 QBD 41
12. R v. Jheeta [2007] Cr App R 477
13. R v. Konzani [2005] KWCA Crim 706
14. R v. Linekar [1995] Cr App R 49
15. R v. Malone [1998] All ER (D) 176
16. R v. Olugboja[1982] QB 320
17. R v. Olugboja[1982], Lord J Dunn
18. R v. Tabassum [2000] 2 Cr App R 328
19. Setting the Boundaries Review (2000) Protecting the Public — Strengthening Protection against Sex Offenders and Reforming the Law on Sexual Offences (2002
20. Sexual Offences Act (1956)
21. Sexual Offences Act s.74
22. Sexual Offences Act s.75 (2) (a-f)
23. Sexual Offences Act s.76 (2)
24. Sir Igor Judge, Jheeta [2007]
25. Woods [1982] Cr App R 312

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[1] Sexual Offences Act s.74

[2] Larter v. Castleton [1995] Crim LR 163

[3] R v. Malone [1998] All ER (D) 176

[4] R v. Camplin [1845] 1 Cox 22

[5] Sexual Offences Act s.75 (2) (a-f)

[6] R v. Flattery [1877] 2 QBD 41

[7] R v. Tabassum [2000] 2 Cr App R 328

[8] R v. Elbekkay[1995]  Crim LR 163

[9] R v. Olugboja[1982] QB 320

[10] Lord J Dunn, R v. Olugboja[1982]

[11] McFall (1994) Crim LR 226

[12] Kaitamaki [1984] 2 All ER 435

[13] Cooper and Schaub [1994] Crim LR 531

[14] R v. Linekar [1995] Cr App R 49

[15] R v. Jheeta [2007] Cr App R 477

[16] Sir Igor Judge, Jheeta [2007]

[17] R v. Dica [2004] 3 All ER 593

[18] R v. Konzani [2005] KWCA Crim 706

[19] Ciccarelli [2011] All ER (D) 23

[20] Woods [1982] Cr App R 312

[21] Fotheringham [1989] 88 Cr App R 206