The Sexual offences Act 1956 contains no statutory definition of ‘consent’. Juries must be told that the word should be given its ordinary meaning, and that there is a difference between ‘consent’ and ‘submission’.
Lack of consent may be demonstrated by:
- The complainant’s assertion of force or threats;
- Evidence that by reason of drink, drugs, sleep, age or mental disability the complainant was unaware of what was occurring and/ or incapable of giving valid consent; or
- Evidence that the complainant was deceived as to the identity of the person with whom (s)he had intercourse.
A boy or girl under the age of 16 cannot consent in law, (Archbold 2004, 20-152).
Consent should be carefully considered when deciding not only what offence to charge but also whether it is in the public interest to prosecute. Sometimes consent is given, or appears to be given, but the law does not treat it as effective consent.
The law does not allow a person’s consent to sexual activity to have effect in the following situations:
- where the person giving consent did not understand what was happening and so could not give informed consent, for example in the case of a child or someone suffering from a severe mental disability;
- where the person giving consent was under the relevant age of consent.
These two situations are different. In the first, the apparent consent is not treated as real consent because the person consenting did not understand enough to give real consent. This is a question of fact. In the second, consent is real as a matter of fact but the law does not allow it to count.
Where the victim has consented in fact but not in law alternative offences may be appropriate. Examples include incest or unlawful sexual intercourse (in the case of a female victim) or, where consensual intercourse with a male under the age of consent, the offence of buggery.
Sexual Offences Act 2003
The Act sets out the offences requiring the prosecution to prove absence of consent at sections 1-4. They are:
- assault by penetration;
- sexual assault; and
- causing a person to engage in sexual activity.
In relation to these offences a person (A) is guilty of an offence if she/he:
- acts intentionally,
- (B) does not consent to the act, and
- (A) does not reasonably believe that (B) consents.
In relation to many other offences there is no requirement to prove an absence of consent. Only the act itself and the age of the victim or other criteria need to be proved. They include:
- rape of a child under 13
- assault by penetration of a child under 13
- sexual assault of a child under 13 and
- inciting or causing a person to engage in sexual activity with a child under 13
- child sexual offences involving children under 16
- children under 18 having sexual relations with persons in a position of trust
- children under 18 involved with family members over 18
- persons with a mental disorder impeding choice
- persons with a mental disorder who are induced threatened or deceived
- persons with a mental disorder who have sexual relations with care workers
Statutory definition of consent
Section 74 defines consent as ‘if he agrees by choice, and has the freedom and capacity to make that choice’. Prosecutors should consider this in two stages. They are:
- Whether a complainant had the capacity (i.e. the age and understanding) to make a choice about whether or not to take part in the sexual activity at the time in question.
- Whether he or she was in a position to make that choice freely, and was not constrained in any way. Assuming that the complainant had both the freedom and capacity to consent, the crucial question is whether the complainant agrees to the activity by choice.
The question of capacity to consent is particularly relevant when a complainant is intoxicated by alcohol or affected by drugs.
In R v Bree  EWCA 256, the Court of Appeal explored the issue of capacity and consent, stating that, if, through drink, or for any other reason, a complainant had temporarily lost her capacity to choose whether to have sexual intercourse, she was not consenting, and subject to the defendant’s state of mind, if intercourse took place, that would be rape. However, where a complainant had voluntarily consumed substantial quantities of alcohol, but nevertheless remained capable of choosing whether to have intercourse, and agreed to do so, that would not be rape. Further, they identified that capacity to consent may evaporate well before a complainant becomes unconscious. Whether this is so or not, however, depends on the facts of the case.
In cases similar to Bree, prosecutors should carefully consider whether the complainant has the capacity to consent, and ensure that the instructed advocate presents the Crown’s case on this basis and, if necessary, reminds the trial judge of the need to assist the jury with the meaning of capacity.
Prosecutors and investigators should consider whether supporting evidence is available to demonstrate that the complainant was so intoxicated that he/she had lost their capacity to consent. For example, evidence from friends, taxi drivers and forensic physicians describing the complainant’s intoxicated state may support the prosecution case. In addition, it may be possible to obtain expert evidence in respect of the effects of alcohol/drugs and the effects if they are taken together. Consideration should be given to obtaining an expert’s back calculation or the opinion of an expert in human pharmacology in relation to the complainant’s level of alcohol/ drugs at the time of the incident.
See Rook and Ward On Sexual offences Law & Practice 4th Edition for a comprehensive discussion on the meaning of consent.
Reasonable belief in consent
Deciding whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps (A) has taken to ascertain whether (B) consents (subsection (2) of sections 1-4). It is likely that this will include a defendant’s attributes, such as disability or extreme youth, but not if (s)he has any particular fetishes.
The Act abolished the Morgan defence of a genuine though unreasonably mistaken belief as to the consent of the complainant. The defendant (A) has the responsibility to ensure that (B) consents to the sexual activity at the time in question. It will be important for the police to ask the offender in interview what steps (s)he took to satisfy him or herself that the complainant consented in order to show his or her state of mind at the time.
The test of reasonable belief is a subjective test with an objective element. The best way of dealing with this issue is to ask two questions:
- Did the defendant believe the complainant consented? This relates to his or her personal capacity to evaluate consent (the subjective element of the test).
- If so, did the defendant reasonably believe it? It will be for the jury to decide if his or her belief was reasonable (the objective element).
Evidential presumptions (section 75)
Section 75 lists the circumstances in which rebuttable evidential presumptions about the absence of consent apply. If the defendant did the relevant act, as defined in section 77 (the sexual activity within sections 1-4), and the circumstances specified in subsection (2) exist and the defendant knew they existed, then the complainant is to be taken not to have consented.
The Act imposes an evidential burden on the defendant to adduce sufficient evidence to raise an issue that the complainant consented and whether or not the defendant reasonably believed the complainant consented. The question whether the defendant adduces sufficient evidence to raise an issue to be left to a jury is a matter for the judge. The issue should be left to a jury where the evidence, if accepted, raises a prima facie case. Once the defendant has done this, it will be for the prosecution to prove beyond a reasonable doubt, that the complainant did not consent and that the defendant did not reasonably believe the complainant consented.
Prosecutors should note that in practice the evidential presumptions very rarely apply.
Conclusive presumptions (section 76)
Section 76 provides two conclusive presumptions that the complainant did not consent to the activity and the defendant did not believe that the complainant consented.
The first presumption, based on the defendant intentionally deceiving the complainant as to the nature or purpose of the relevant act, has been the subject of discussion in several cases including:
- In R v Jheeta  EWCA Crim 1699 where the defendant had deceived the complainant and pressured her into having sexual intercourse more frequently than she would have done otherwise, the conclusive presumption did not apply because there had been no deception as to the nature or purpose of sexual intercourse.
- In R v Tabassum  2 Cr App R 328 where the defendant conducted breast examinations for his own sexual gratification, on the pretence that he was collecting data for a cancer screening programme there was no genuine consent because the complainants had consented only to an act of a medical nature and not for any other reason.
- In R v Devonald  EWCA Crim 527 the conviction of causing a person to engage in sexual activity without consent was upheld where the defendant in order to embarrass his victim, posed as a young woman and persuaded him to masturbate in front of a webcam.
Section 74 has recently been considered by the High Court and the Court of Appeal in a series of cases where ostensible consent in relation to sexual offences was considered not to be true consent, either because a condition upon which consent was given was not complied with or because of a material deception (other than one which falls within section 76 of the Sexual Offences Act 2003 [SOA]). The resultant judgments identified three sets of circumstances in which consent to sexual activity might be vitiated where the condition was breached.
In Julian Assange v Swedish Prosecution Authority  EWHC 2849 (Admin), an extradition case, the President of the Queens Bench Division considered the situation in which Mr Assange knew that AA would only consent to sexual intercourse if he used a condom. Rejecting the view that the conclusive presumption in section 76 of the SOA would apply in these circumstances the President concluded that the “issue of materiality …can be determined under section 74 rather than section 76”.
On the specific facts the President said:
“It would plainly be open to a jury to hold that if AA had made clear that she would only consent to sexual intercourse if Mr Assange used a condom, then there would be no consent if, without her consent, he did not use a condom, or removed or tore the condom ….. His conduct in having sexual intercourse without a condom in circumstances where she had made clear she would only have sexual intercourse if he used a condom would therefore amount to an offence under the Sexual Offences Act 2003….”
In R (on the application of F) v The DPP  EWHC 945 (Admin), the High Court examined an application for judicial review of the refusal of the DPP to initiate a prosecution for rape and/or sexual assault of the complainant by her former partner. “Choice” and the “freedom” to make any particular choice must, the Court said, be approached in “a broad commonsense way”.
Against what the Court described as the “essential background” of the complainant’s partner’s “sexual dominance” and the complainant’s “unenthusiastic acquiescence to his demands”, the Court considered a specific incident when the claimant consented to sexual intercourse only on the clear understanding that her partner would not ejaculate inside her vagina. She believed that he intended and agreed to withdraw before ejaculation, and he knew and understood that this was the only basis on which she was prepared to have sexual intercourse with him. When he deliberately ejaculated inside the complainant, the result, the Court stated was:
“She was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly her consent was negated. Contrary to her wishes, and knowing that she would not have consented, and did not consent to penetration or the continuation of penetration if she had any inkling of his intention, he deliberately ejaculated within her vagina. In law, this combination of circumstances falls within the statutory definition of rape”.
The third case, Justine McNally v R  EWCA Crim 1051, differs from those referred to above. Unlike Assange and F, both of which turned on an express condition, McNally was concerned with the material deception of the victim by the Appellant.
The Court of Appeal dismissed McNally’s appeal against her conviction on six counts of assault by penetration contrary to section 2 of the SOA and allowed her appeal against sentence. The “undeniably unusual” facts considered by the Court involved the relationship between two girls which, over 3 years, developed from an internet relationship to an “exclusive romantic relationship” that involved their meeting and engaging in sexual activity. From the start McNally presented as a boy, a deception she maintained throughout the relationship. Examining the nature of “choice” and “freedom”, the Court determined that “deception as to gender can vitiate consent”.
The Courts reasoning was as follows:
“Thus while, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common sense view, different where the complainant is deliberately deceived by a defendant into believing the latter is a male. Assuming the facts to be proved as alleged, M chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the appellants deception.”
Demonstrating that the circumstances in which consent may be vitiated are not limitless, the Court explained:
“In reality, some deceptions (such as, for example, in relation to wealth) will obviously not be sufficient to vitiate consent.”
Referral to the Principal Legal Advisor (PLA)
In the light of the developing concept of conditional consent and the absence of a clear authority as to how far the concept extends, all proposed decisions in conditional consent cases whether to charge or not – must be referred to the Principal Legal Advisor (PLA) for authorisation.
This is in order to allow the PLA to oversee charging decisions being made in these cases and to provide advice in appropriate cases. Accordingly, the PLA must be notified prior to any decision being communicated to the police or any other party.
For the avoidance of doubt, details of all cases referred by the police which are not thought to pass the Full Code Test must also be sent to the PLA (before the decision is communicated), as well as those where it is intended to charge.
For these purposes conditional consent refers to allegations of sexual offences in which it is said that ostensible consent was not true consent, either because of a material deception (other than one which falls within section 76 of the Sexual Offences Act 2003) or because a condition on which consent was given was not complied with.
The approach should focus on the relevance of any condition to the nature of the activity.
Referrals to the PLA must either be through Heads of Complex Casework Units (CCU), Chief Crown Prosecutors (CCP) or Deputy Chief Crown Prosecutors (DCCP).
The following must be sent with the case details:
- a copy of the MG3;
- a synopsis of the evidence prepared by the reviewing lawyer, including an outline of the relevant legal considerations and the application of the relevant legal authorities to the facts of the case; and
- an endorsement of the proposed course of action from the CCU Head, CCP or DCCP through whom the referral to the PLA is being made.
As set out in the Code for Crown Prosecutors, prosecutors must apply the principles of the European Convention on Human Rights, in accordance with the Human Rights Act 1998, at each stage of a case. Prosecutors are also bound by the duties set out in the Equality Act 2010. This is especially relevant when making decisions that impact on transgender suspects. Prosecutors should address suspects according to their presented gender by using the correct gender and pronouns in all documentation.
Prosecutors reviewing sexual offence cases involving suspects who are transgender need to be aware of, and sensitive to, all the relevant circumstances and should ensure the police supply as much information as possible in order to properly inform their decision making. For example prosecutors will need to know the suspects position in relation to the Gender Recognition Act 2004 (GRA).
When considering the issue of consent as part of the evidential stage of the Full Code Test prosecutors should be aware that the Court of Appeal in Justine McNally v R  EWCA Crim 1051 determined that deception as to gender can vitiate consent (paragraph 27).
Whether there has been deception as to gender will require very careful consideration of all the surrounding circumstances including:
- How the suspect perceives his/her gender;
- What steps, if any, he/she has taken to live as his/her chosen identity; and
- What steps, if any, he/she has taken to acquire a new gender status.
When considering the public interest stage of the Full Code Test prosecutors should, in addition to considering the questions set out at paragraph 4.12 of the Code, take into account:
- Whether the offending occurred as a result of the suspects uncertainty or ambivalence about his/her gender identity;
- The nature and level of the relevant sexual activity;
- The nature and duration of any relationship between the suspect and complainant;
- Where the suspect has made an admission, whether an out-of-court disposal might take the place of a prosecution and provide an appropriate response to the offender and/or the seriousness and consequences of the offending.