Sexual Offences

The issue of whether the complainant consented or not is central to establishing whether rape actually took place - a discussion in the light of the Sexual Offences Act 2003 - Justin Santiago

At the core of rape is the issue of consent which is a surrounding circumstance which criminalizes otherwise lawful conduct.

S1(1) of the Sexual Offences Act 2003 creates the offence of rape with elements of actus reus and mens rea. The two actus reus elements are penile penetration by A of the vagina, anus or mouth of B and the absence of B’s consent. The twp mens rea elements are intentional penetration and A lacking a reasonable belief in B’s consent.

One of the principal aims of the Sexual Offences Act 2003 was to define consent, something that was done in such a way in the old act which made it difficult to prosecute rapists and which left much of the decision making of whether there was consent or not to the jury. The previous law on rape required proof that the accused either knew or was reckless as to the fact that the victim was not consenting and framed consent in negative terms i.e. what is not consent such as the use of force by the defendant and resistance by the complainant : R v Harling, R v Howard. Later the R v Olugboja approach to consent was to leave the important issue of consent undefined and to direct the jury to consider the difference between consent and mere submission based on good sense, experience and knowledge of human nature and modern behaviour. Under the old law a defendant could avoid liability for rape if he had an honestly held mistaken belief in consent even if that was unreasonable : DPP v Morgan (often called the rapist’s charter).

The approach in Morgan which adopted a subjective approach in line with the general trend of English criminal law emphasised that people ought to be judged on the facts as they believed them to be, and not on facts to which they had not given thought. If an offence requires proof of intention or recklessness in respect of a consequence or circumstance, then it is a matter of "inexorable logic" that a mistaken belief in that respect should negative liability. Whatever the justifications for this as a general approach in the criminal law, it seemed to many that those justifications were outweighed in the case of sexual offences, where the two parties are necessarily in close proximity and where intercourse without consent would be a fundamental violation of the victim and that there should be clear to the accused that the victim does consent.

The SOA 2003 changes this by introducing a requirement that the defendant’s belief in the victim’s consent must be reasonable and this belief is determined with regard to all the circumstances including any steps taken to ascertain whether there was consent. In doing so the SOA 2003 has opted for a reasonableness standard rather than the requirement of knowledge or reckless knowledge as to the lack of consent.

It also tries to define consent by providing a non-exhaustive list of non-consent situations which was intended to illuminate the definition to set clear boundaries for society as to what is acceptable and unacceptable behaviour and which has radically changed the mens rea of rape. The SOA 2003 attempts to interpret consent in positive terms and Section 74 defines consent as “an agreement by choice with the freedom and capacity to make that choice.” This wording discards the "reasonable person" in favour of a general test of what is reasonable in the circumstances which avoided situations where the accused has a learning disability or mental disorder and to judge him on reasonable person’s standard would have been too harsh. In determining whether it is founded on reasonable grounds, the jury are not to conceive of some ideally reasonable person, but they are to put themselves in the position of the assailed person, with his physical and mental equipment, surrounded with the circumstances and exposed to the influences with which he was surrounded and to which he was exposed at the time (Victoria Nourse in "The 'Normal' Successes and Failures of Feminism and the Criminal Law")

The broad reference to "all the circumstances" is an invitation to the jury to scrutinise the complainant's behaviour to determine whether there was anything about it which could have induced a reasonable belief in consent. In this respect the Act contains no real challenge to society's norms and stereotypes about either the relationship between men and women or other sexual situations, and leaves open the possibility that those stereotypes will determine assessments of reasonableness.

Section 75 outlines evidential presumptions to show that there has been no consent including situations where there has been violence towards the victim or a third party, where the victim is detained or asleep or where the victim’s physical disability precluded communication about consent or if a substance had been administered to the victim to overpower or stupefy the victim.

Section 76 outlines conclusive presumptions that there has been no consent where there has been deception as to the nature and quality of the act and/or impersonation of another.

However the SOA 2003 has been criticized for creating some confusion when it attempts to categorise matters of consent and belief in consent according to J.Temkin and A.Ashworth in their article "The Sexual Offences Act 2003 : Rape, Sexual Assaults and the Problems of Consent".

By categorizing the matters of non consent it is not sure whether this reflects a moral hierarchy or is the organizing principle one of clarity and certainty. It should have been made more simple and plain without this categorization. There should not be differences in the way non-consent is obtained whether by the accused deceiving the victim by means of impersonation or whether the accused has sex with the victim when the victim is asleep or unconscious. These situations should only go towards proving whether there was consent or not in line with the definition in Section 74.

There are also no solutions provided to the difficulties surrounding consent obtained where the victim was voluntarily and heavily intoxicated.While setting the threshold for intoxication too high ran the risk of excluding such cases, setting it too low presented its own difficulties. The approach taken precluded the capacity to consent only in situations where the victim has been “stupefied” as required under Section 75(2)(f). There are a whole spectrum of possibilities between these two positions that vary according to numerous factors: the nature of the intoxicant, the means by which it came to be ingested by the victim, the parity of intoxication as between the parties and the extent to which the intoxicant affected the victim's ability to understand her situation and exercise rational decision-making ability. What rape cases involving intoxication demanded, but the law was unable to provide, was clear guidance on the criteria by which to draw the lines of criminal transgression on this continuum.

There is no definition of stupefaction in English law. If we assume that it is intended to carry its ordinary meaning, that is "to render senseless or insentient" then this implies a total loss of sensory perception and could be seen as another way of requiring that the victim be rendered unconscious. If a similarly narrow approach were to be adopted in relation to s.75(2)(f), then the 2003 provision actually leaves the stupefied victim who is subjected to unwanted intercourse with a lesser level of protection than that afforded under the previous law. Under the Sexual Offences Act 1956, the position of the victim intoxicated to the point of stupefaction was easily addressed as her near-unconsciousness was deemed to preclude any possibility of consent. By contrast, under s.75, such a state would merely raise a rebuttable presumption of non-consent.

There is a clear danger that, depending on the interpretation afforded to the concept of stupefaction substances like rohypnol (date rape drug) would potentially be excluded by such an interpretation since it does not necessarily render the victim unconscious at the time of intercourse. Research undertaken into the impact of rohypnol indicates that individuals retain consciousness for a period of several hours after ingestion. During this time, they are able to move, communicate and interact with others, despite appearing to be somewhat confused or disorientated.

Also SOA 203 fails to address where the victim actually encourages the defendant to use violence to enhance the sexual experience, again something which happens in totally innocent situations. This area of the law has not been adequately covered under common law as can be seen in R v Brown where there can be no consent to grievous bodily harm simply based on public policy arguments that people should not cause each other injury for no good reason and R v Emmet where it was held by the Court of Appeal that it was not in the public interest for individuals to inflict harm on each other for the purposes of sexual gratification.