Absence of consent - Criminal Law PDF

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This document provides: Absence of consent supported by seven relevant cases....

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Absence of consent Difficulties often arise when D argues that he mistakenly believed that V was consenting.

The Law Commission defined consent as ‘a subsisting, free and genuine agreement in question’. But the SOA 2003 goes further. Section 74 state:

For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.

B (2013) D was convicted of raping and assaulting his partner, V. There was expert medical evidence that D had been suffering from a mental disorder, probably paranoid schizophrenia, at the time of the offences, but that he had had the capacity to know what he was doing and that it was wrong. The expert said that the acts of intercourse might have been motivated by D’s delusional beliefs that he had sexual healing powers, but that any such delusions did not extend to a belief that V had consented. On the rape counts, the judge directed the jury that they should ignore D’s mental illness when asking whether any belief that he might have had in V’s consent had been reasonable. CA: upheld the convictions. There was clearly a proper basis for the jury’s finding that V had not consented to sexual intercourse.

Ciccarelli (2011)

After a party, D had tried to initiate sex with V. The only issue was whether he might reasonably have believed that she was consenting. D had gone into V’s room and, while she was sleeping, had kissed her and had touched her with his penis. At that point she had woken up and immediately told him to leave. He did. He claimed that earlier in the evening she had tried to kiss him and, on that basis, he believed that she would consent to sex. The trial judge held that there was no evidence on the basis of which D could argue that he had reasonably believed V to be consenting. He then pleaded guilty to sexual assault. CA: dismissed D’s appeal.

Mba (2012) D allegedly punched V, dragged her to his bedroom where he bound her hands and feet with tape, held a knife to her, and vaginally, and orally, raped her. V suffered extensive bruising to her face, cuts to the inside of her mouth, and lost a tooth. At trial D asserted that V had consented to being tied up and to vaginal and oral sex; he denied prodding her with a knife or repeatedly punching her. The trial judge told the jury that P’s case was that, at the time or immediately before D penetrated V’s vagina, D was using violence against her or was causing her to fear that violence would be used and that he knew that. He directed the jury that if they were sure that that was the case, they had to find that V did not consent to the act of penetration. D argued that there was evidence for the jury to consider whether, at the point of penetration, M reasonably believed that V was consenting to intercourse, and that his conviction for rape was unsafe. He appealed against his convictions for rape and for causing GBH with intent. CA dismissed the appeal.

Jheeta (2007) V met D in college and in the course of time a sexual relationship began. V then started to receive text messages and phone calls threatening to kill or kidnap her. The messages were in fact from D but he continued to purport to reassure her that he would protect her. When V

decided to go to the police, D said he would do so for her, and he then sent her regular text messages from fictitious police officers. This continued for several years. Whenever she sought to end the relationship, she would receive text messages from supposed police officers, telling her that D had tried to kill himself and that she should do her duty and take care of him. V was told that she should sleep with him, and that she would be liable to a fine if she did not. She received about 50 such demands over a four-year period. On each occasion she complied with them and had intercourse with D in a hotel room. She said that but for the messages from the fictitious police officers, she would not have done so. She eventually reported the facts to the (real) police. After a discussion between counsel and the trial judge on the implications of s 76 of the SOA 2003, D pleaded guilty to two counts of procuring sexual intercourse by false pretences, contrary to s 3 of the SOA 1956, four counts of rape, contrary to s 1 of the 2003 Act, and one of blackmail. D argued on appeal that there was no deception operating on V’s mind about the nature or purpose of the act and that the guilty plea had been tendered after legal advice which did not accurately reflect the statutory provisions. CA (Sir Igor Judge, President of the QBD): upheld the convictions.

Devonald (2008) V was a 16-year-old boy who had been in a relationship with D’s daughter. The relationship had broken down and D sought to teach V a lesson by deliberately embarrassing him. He pretended to be a young woman and began to correspond with V over the internet, persuading him to masturbate in front of a webcam. D was convicted of an offence of causing a person to engage in sexual activity without consent , having changed his plea to guilty following a ruling by the judge. The issue was whether V had consented to masturbate. D submitted that s 76(2)(a) dealt with deception as to the act itself rather than as to the surrounding circumstances, and that V had well understood that the act in which he had engaged was a sexual one. CA: refused the application to appeal. V had not ‘consented’: it was open to a jury to conclude that V had been deceived as to the purpose of the masturbation. It was difficult to see how the jury could have concluded otherwise than that V had been deceived into believing that he was indulging in

sexual acts with, and for the sexual gratification of, a young woman with whom he was having an online relationship. B (2013) D contacted V, his girlfriend, via a social networking site under a false name (G) and she sent topless photographs to him at his request. He later threatened her that if she did not engage in various sexual acts over the internet, he would send the topless pictures to her employers and publish them on the internet. She obeyed. V confided in D. He later told her that he had beaten and killed G. D then contacted V over the networking site under another false name (C) claiming to have known G and threatening to send the topless pictures to her employers if she did not carry out further sexual acts. V complied but later contacted the police who confirmed that G and C were both D. D admitted that he had assumed the false identities but said he believed that V was consenting to the sexual acts. The judge, relying on Devonald (just discussed), directed the jury that if they found that V had been deceived as to the true purpose of the sexual acts, then the conclusive presumption under s 76 of the Act applied, removing D’s defence that he had a reasonable belief that V was consenting. D was convicted of causing a person to engage in sexual activity without consent contrary to SOA 2003, s 4.

CA: quashed conviction, and ordered a retrial. If there was any conflict between the decisions in Jheeta and Devonald, Jheeta would be followed unhesitatingly, Devonald doubted. There had to be deception as to the nature or purpose of the sexual acts for the conclusive presumption to apply . The prosecution needed to look no further than the provisions of Section 74. It provides that “a person consents if he agrees by choice and has the freedom and capacity to make that choice”. If the complainant only complied because she was being blackmailed, the prosecution might argue forcefully she did not agree by choice’ .

Court (1988)

D spanked a 12-year-old girl in the shop where he worked 12 times outside her shorts. He pleaded guilty to assault, but not to indecent assault. He admitted that he had a buttock fetish, but this was a secret motive. He was convicted of indecent assault. HL (by a majority of 4 to 1): dismissed D’s appeal....