Sexual Offences Act 2003

Critically evaluate the definition of consent for the purposes of sexual offences since the enactment of the Sexual Offences Act 2003, with particular regard to the presumptions in ss.75 and 76.

A number of criminal offences under the Sexual Offences Act 2003 (the Act) require consideration of the issue of consent. The Act states “a person consents if he agrees by choice, and has the freedom and capacity to make that choice”[1]. Unfortunately, the words used in the Act have been referred to as “complex and ambiguous concepts, which defy precise definition”[2]. Specifically in relation to Rape, “consent is relevant to the offence of rape in two ways: lack of consent is part of the actus reus of rape; and the defendant’s lack of a reasonable belief in consent is part of the mens rea”[3]. This Act attempted to define consent in statute for the first time. This was presumably thought to be a necessary step because “Consent is at the heart of the offence of rape, and the issue of whether there was consent, or whether a defendant believed there was consent, forms the key area of dispute in a significant proportion of rape cases”[4]. Upon further examination of the Act and decided cases, it seems clear that the new definition of consent has not helped to simplify the issue for the judiciary. There is perhaps evidence to suggest that the new statutory definitions relating to consent may have actually increased complexity for those dealing with sexual offences.

In defining consent in the Act, there is further qualification to the basic proposition provided by Section 74. The Act goes on to set out evidential presumptions about consent in Section 75. If one of a list of circumstances exist and the alleged offender is aware of that circumstance (for example “the complainant was asleep or otherwise unconscious at the time of the relevant act”[5]) then the complainant is presumed not to have consented and it is also presumed that the alleged offender did not believe that they had consented “unless sufficient evidence is adduced”[6] to prove to the contrary. This Section might appear to create a reverse burden of proof upon the defendant in certain circumstances, something which has been tested through the judicial system. The particular phrasing used in the Act was looked at in the case of R v Ciccarelli[7] when the Court concluded that the Section did not reverse the usual standard of proof (beyond reasonable doubt) but instead “before the question of the Appellant’s reasonable belief in the Complainant’s consent could be left to the jury, some evidence beyond the fanciful or speculative had to be adduced to support the reasonableness of his belief in her consent”. Provided any such evidence is adduced, then the burden would remain on the Prosecution to prove the elements of the offence beyond reasonable doubt. Obviously what will amount to some evidence beyond the fanciful or speculative is to be judged carefully in each case as the Act doesn’t create a simple formula for the Court to follow. The correct application of this Section is not always simple as was highlighted in the case of R v K (Tamanda)[8] where in the Court of first instance His Honour Judge Boney QC incorrectly summed up the law in relation to Section 75 of the Act. A direction (later amended after representations from the defence Barrister) was given to the jury that if they found it proven that the complainant was unlawfully detained by the defendant at the time an alleged sexual assault occurred, then it “can be taken by you as read that [S] was not consenting, and that the defendant did not believe that she was”[9]. Clearly this was a misstatement of the law because if the defendant was able to adduce sufficient evidence that either there was consent or that he reasonably believed there was consent, then the burden of proof would again fall to the prosecution to prove beyond reasonable doubt both that the complainant did not consent and that the defendant did not reasonably believe she consented.

In addition to the evidential presumptions about consent, there are also two scenarios specified in the Act which if found to exist would provide a conclusive presumption that the complainant did not consent and that the alleged offender did not reasonably believe that they consented. One such scenario is where ” the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act”[10]. It is for the prosecution to prove beyond reasonable doubt that such a scenario did exist and if they can overcome this evidential hurdle then a jury would no longer need to consider whether the complainant consented or whether the alleged offender reasonably believed that she had consented. In the case of R v Devonald [11] it was held that the jury should have been allowed to consider whether the complainant in the case had been deceived to masturbate over a webcam and having made that conclusion, it was safe for the jury to convict the defendant on the basis that his reasonable belief was thereafter irrelevant. Unfortunately, even where there has been deception, it doesn’t necessarily mean that consent is vitiated as was the case in R v Jheeta [12].

The evidential and conclusive presumptions about consent set out in the Act have been added to by case law which has apparently created a new concept of “conditional consent”. The cases of Julian Assange[13], R (on the application of F)[14] and Justine McNally [15] have all examined and evolved this concept. All of these cases involved apparent consent to sexual acts but in the former two cases, that consent was based on an expressed condition (to use a condom or not ejaculate). In summarising the view of the judiciary in these cases, it has been observed that; ” The Divisional Court has recognised that a woman is entitled to consent to sexual intercourse on condition that her partner wears a condom or agrees not to ejaculate inside her vagina. Provided such a condition has been communicated to the defendant, a deliberate decision by him to ignore it will give rise to liability for rape” [16]. This evolution of the definition of consent is perhaps a natural progression but regarded critically it could be argued that it demonstrates that the statutory definition of consent is left wanting. Ultimately it may show that the issue of consent will continue to be ruled by the evolution of the common law rather than the rigid template of statute.

In cases where a complainant has become voluntarily intoxicated, the Act provides very little assistance. This is a particular drawback to the effectiveness of the Act because many rape cases involve voluntarily intoxicated complainants. There is mention of whether the complainant has capacity to consent but capacity is not defined in the Act, in fact “the relevant parliamentary debates in relation to the 2003 Act clearly indicate that capacity is concerned primarily with age and mental disability as opposed to voluntary intoxication” [17].

It has been argued that “trial judges may need detailed guidance about how properly to address their task in such cases” [18] when consent is a live issue, perhaps more guidance than would have been necessary before the Act. There is a view that “creating new statutory evidential burdens in trials for offences as complex as those under the Sexual Offences Act 2003 creates major headaches for trial judges”[19]. This clearly was true in the case of R v K (Tamanda) where the trial judge required guidance from Counsel in order to properly direct the jury. Parliamentary intention may have been to assist the judiciary in dealing with sexual cases and lend further protection to victims of sexual offences but “it has been argued the presumption will make judicial directions to juries too complicated, and thus convictions less, rather than more, likely”>[20]. Ultimately, it may simply have been naive to expect legislation to be effective in tackling the complex idea of consent because the “practical reality is that there are some areas of human behaviour which are inapt for detailed legislative structures”[21].

References

All England Annual Review, 2007, 9, Criminal Law

ibid

Sexual Offences Act 2003, s.75(2)(d)

Sexual Offences Act 2003, s.75(1)

[2011] EWCA Crim 2665

[2013] EWCA Crim 560

ibid [10] Lord Justice Moore-Bick

Sexual Offences Act 2003, s.76(2)(a)

[2008] All ER (D) 241 (Feb)

[2007] EWCA Crim 1699

Julian Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin)

R (on the application of F) v The DPP [2013] EWHC 945 (Admin)

Justine McNally v R [2013] EWCA Crim 1051

Journal of Criminal Law, 2013, Volume 77, Issue 4, August, Case Notes, Divisional Court: Conditional Consent? An Emerging Concept in the Law of Rape – JCL 77 (286)

Journal of Criminal Law, 2010, Volume 74, Issue 6, December, Articles, Alcohol-related Rape Cases: Barristers’ Perspectives on the Sexual Offences Act 2003 and Its Impact on Practice – JCL 74 (579)

Elvin, “The Concept of Consent under the Sexual Offences Act 2003”, p.519

International Journal of Evidence and Proof, 2005, Volume 9, Issue 1, January, Articles, Proving consent in sexual cases: Legislative change and cultural evolution – IJEP 9 1 (1)

ibid

Journal of Criminal Law, 2010, Volume 74, Issue 6, December, Articles, Alcohol-related Rape Cases: Barristers’ Perspectives on the Sexual Offences Act 2003 and Its Impact on Practice – JCL 74 (579)

Sexual Offences Act 2003, s.74

Temkin, J and Ashworth, A, The Sexual Offences Act 2003: (1) Rape, sexual assaults and the problems of consent‟, (2004) Criminal Law Review at p.339