Explain and critically evaluate the law of consent as it applies to the crime of rape. PDF

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Explain and critically evaluate the law of consent as it applies to the crime of rape.To what extent have the statutory definition of consent in section 74 of the Sexual Offences Act 2003 and the presumptions contained in sections 75 and 76 eased the burden of prosecution and the vulnerability of ra...

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Explain and critically evaluate the law of consent as it applies to the crime of rape. To what extent have the statutory definition of consent in section 74 of the Sexual Offences Act 2003 and the presumptions contained in sections 75 and 76 eased the burden of prosecution and the vulnerability of rape victims to intrusive court procedures? When it comes to cases of rape, the main problem for the prosecution is to prove the absence of consent. Historically, rape was an offence which can only be committed by a man on a woman, but since the CJPOA 1994, it can be committed on either a man or a woman. It also acknowledges the consent of the wife which was presumed unless the marriage had been terminated. Until the passing of the SOA 2003, proving lack of consent beyond reasonable doubt created substantial problems for the victims of rape. It was exacerbated by insensitive rules of procedure and intrusive questioning which portrayed the victim as a woman of loose morals who was unlikely to have refused consent. The SOA 2003 aimed to ease the burden of prosecution and seeks to simply the process of establishing absence of consent by the use of presumptions, namely conclusive (s.76) and evidential (s.75). The effect of this act was that where these presumptions apply, there will rarely be any need for the victim to be cross-examined on the question of consent; it will be presumed absent. But if neither applies, the absence of consent will be proved in the usual way in reference to s.74. The SOA 2003 defines rape as the non-consensual penetration of the mouth, anus or vagina of a man or woman by a man’s penis, where B does not consent to the penetration and A does not reasonably believes that B consented. It departs from the previous law in a number of ways. The Act abandoned the term ‘sexual intercourse’ and instead uses ‘penetration’ by D’s penis, preserving the exclusively masculine status of the defendant. Secondly, there is the addition of forcible oral sex as rape which can be as devastating. It also acknowledges surgically reconstructed vaginas covering the cases of transsexuals. The act also introduces a

definition of consent and a number of presumptions to help prove the absence of consent. And lastly, it also introduces a new fault element based on the lack of reasonable belief in consent. This is a major departure from the previous law, under which the mens rea for rape was knowledge that person was not consenting or recklessness, as to whether they were consenting. Meaning an honest belief, even if unreasonable, that the person was consenting negated this intention or recklessness. One very important protection of the complainant in this regard is introduced by sections 75 and 76, by which both absence of consent and lack of reasonable belief in consent are presumed in certain circumstances. The conclusive presumptions (s.76) target cases where the defendant has deceived the complainant, either as to the nature or purpose of the act or as to his personal identity. Previously, deception was held as the nature and quality of the act rather than purpose. A pre-SOA 2003 example of the first presumption is the case of Williams [1923]. V was tricked by D into having intercourse as it would improve her singing voice. It was held that her consent was vitiated by fraud as to the nature and quality of the act. What she was consenting to and what she thought she was consenting to were completely different in their nature. The addition of ‘purpose of the act’ sought to cover cases such as fake medical examinations as in the case of Tabassum. Another pre-Act case is Linekar [1995], where it was held not to be rape for a person to trick a prostitute into having intercourse without payment. It was concluded that she was deceived neither as to the nature or the quality of the act. However, since the passing of SOA 2003, this case may be decided differently. Since V could plausibly argue that although she did consent to the nature of the act, she did not consent to its purpose. The purpose for her was financial not sexual. Before the SOA 2003, a man who tricked a woman into having sexual intercourse with him by impersonating her husband or partner committed rape. As in the case of Elbekkay [1994], when D, twin brother of V’s boyfriend, had intercourse with V by pretending to be the brother, it was rape. The SOA 2003 extends the rules that

consent is vitiated not only when it is the complainants partner or spouse but also when it as any person ‘known personally to the complainant’. The act does enforce a limitation, however, that the person must be known personally to the victim. For instance, if a person impersonating as George Clooney induced a woman into having sexual intercourse with him, s.76 will be inapplicable unless Clooney was known personally by the victim. The significance of s.76 is that it does not simply establish absence of consent but that it is conclusive on the question of guilt. If the presumption applies, D is automatically guilty. Hence, as stated by the Court of Appeal, it should be subject to ‘stringent scrutiny’. For instance, in the case of Jheeta {2007), D sent V text messages from ‘police officers’ telling her it was her duty to sleep with him whenever she tried to end the relationship. The prosecution sought to rely on s.76(2)(a) but was deemed inapplicable by the court of appeal on the grounds that V had been deceived but not as to the nature or purpose of the act. Prosecution then tried to prove the absence of consent via s.74, which it succeeded in doing. In s.75, where one of six different circumstances occur, it is a rebuttable evidential presumption that V did not consent to the relevant act, and D did not reasonably believe that V consented. The key difference between s.76 and s.75 is that evidential presumptions can be rebutted by the raising of relevant evidence. The circumstances include, at the time of the relevant act, violence or threat of immediate violence against the complainant, violence or the threat of immediate violence against another person, complainant being unlawfully detained, complainant is asleep or unconscious, a physical disability making it difficult for the complainant to communicate their consent, and a substance taken by the complainant, without their consent, which stupefied them. These presumptions concern particular situations which render it highly likely that the victim did not consent and that the defendant did not reasonably believe so. The procedure entails that the prosecution must prove beyond reasonable doubt that the circumstance existed, V is then presumed not to have consented and that D is presumed to have known that. For instance, s.75(2)(f) covers cases where D secretly introduces a ‘date rape’ drug into V’s drink or ‘spikes’ V’s drink with

alcohol. However, it is important to note that the prosecution need only prove the taking of a substance capable of having the relevant effect, not that V was stupefied or overpowered. But since it is a rebuttable presumption, the defense can argue that the complainant was not stupefied and that the intoxicant acted so as to disinhibit rather than incapacitate, and ‘drunken consent is still consent’ Dougal (2005). If the trial judge considers the evidence as plausible, the burden then returns to the prosecution of having to prove absence of consent via s.74. All of the evidential presumptions operate this way. Another example is when D has sexual intercourse with V while she is asleep or when D used force or threat of force before or during the relevant act. Prosecution must prove beyond reasonable doubt that V was asleep or that force was used when the relevant act took place. D will be presumed to be guilty unless he can offer plausible evidence in rebuttal that that sleeping sex was a regular consensual occurrence or both shared interest in sadomasochistic role-playing. In cases not covered by s.76 and s.75, the jury must examine the evidence to decide whether consent is present. S.74 of the SOA 2003 defines consent as ‘a person consents if he agrees by choice, and has the freedom and capacity to make that choice’. However, it does little to improve the situation as both ‘freedom’ and ‘choice’ are ‘ideas which raise philosophical issues of such complexity as to be illsuited to the needs of criminal justice’ as mentioned by Temkin and Ashworth. The indeterminacy has led judges to continue to reply on pre-Act law to help formulate jury directions. In Olugboja [1982], the victim said she didn’t consent but she didn’t struggle as she was terrified. The defendant in return said that he did not threaten or use force and she consented raising the issue of consent and mere submission. Dunn LJ said that ‘the dividing line… between real consent… and mere submission… may not be easy to draw’ and the Court of Appeal chose to rely on the ‘good sense of the jury’. Keeping aside threats of immediate violence which invokes s.75, there are instances where proving absence of consent can be problematic which results from pressure from the defendant or external circumstances. In Doyle [2010], a case involving the rape of the defendant’s ex-partner, the Court of Appeal noted

the direction given by Pill J in the trial of Mohammad Zafar that ‘…the fact that such consent is given reluctantly or out of a sense of duty to her partner is still consent’. In cases where things are not clear-cut, the court of appeal was content with the trial judge’s decision, based on Olugboja, to trust the ‘good sense of the juury’. In Kirk [2008] the court of appeal upheld the conviction of a defendant who had made sexual intercourse the condition of a gift of money needed by the young homeless victim to buy food. This did form the distinction between consent and mere submission, without clarification, which formed the basis in Olugboja. She probably submitted rather consented as she had no choice. However, this then raises the problematic nature of consent as possibly the majority of prostitutes make such a choice on a day-to-day basis but the punters are not charged with rape. In a similar situation in R v Ali and Ashraf [2015], a vulnerable and immature complainant, who had been groomed by the defendants, gave consent to sexual intercourse. However, the court of appeal reminded the jury that they were not bound to accept this apparent consent as freely chosen as ‘the person may be confused about the distinction between acquiescence and genuine agreement’. Here if the jury chooses to convict, the question arises whether it is done on the basis of the exploitative nature of the relationship or the specific wrongful act. Similarly, consent can be difficult to prove when intoxication is involved as it hinders with a person’s capacity to consent and their freedom of choice. It may also disinhibit, which is perfectly consistent with consent. In the case of Bree [2007], V having lost consciousness woke up to find D having sexual intercourse with her, after a heavy night of drinking. The prosecution stated that although she did not lack the capacity to consent, she did not consent and made it clear as far as she could. The trial judge failed to put this clearly to the judge and the court of appeal quashed the conviction. It is important to note that if the alcohol renders the victim unconscious, then there is no consent due to lack of capacity. If it prevents the person from communicating their lack of consent, then there is no consent due to lack of free choice. However, if the alcohol merely causes the victim to engage in sexual activity, then ‘drunken consent is still consent’.

In Kamki [2013], the trial judge approved such a direction in case involving sexual activity while intoxicated raising the questions of consent, differentiating between unconsciousness, dim and drunken awareness and reduced inhibitions. Similarly, in the cases of deception which do not fall under s.75 and 76, consent means informed consent, whether there is an awareness of the relevant facts and circumstances. For instance in the case of B [2006], D hid the fact that he was HIV positive and had intercourse with V. Does the concealment vitiate consent or not. Court of Appeal ruled that it was not vitiated for the purpose of the offence of rape but was for s.20. It was an offence against the person rather than specifically sexual offence. In R (monica) v DPP [2018], the woman’s consent was held not to be vitiated by the fraudulent representation of her partner that he was a fellow environmental officer when he was in fact an undercover police officer. The judge ruled that deception did not generally vitiate consent except where s.76 applied, or where, as in Jheeta, other pressure was brought to bear. The deception must be capable of making a morally significant difference to the choice made by the complainant. In cases where a conclusive or an evidential presumption is applicable; the procedure entails that D will be considered guilty unless he can rebut the presumption. Presumably, he can do this by raising plausible evidence that V said or did certain things which implied willingness. If plausible, the burden of proof shifts back to prosecution to prove absence of consent with reference to s.74. The prosecution will then argue on the notion of ‘freedom’ and ‘capacity’ to make such a choice and D’s reasonable belief of V’s consent. However, the trial judge is entitled to withdraw the question as to whether D’s belief was reasonable if there was insufficient evidence as in the case of Ciccarelli [2011]. Whether D’s belief is reasonable or not is assessed objectively, it matters not that D thought his belief was reasonable as in the case of B [2013]. The SOA 2003 did manage to support and encourage victims in reporting sexual offences to an extent. The inflexible procedure and the invasive questions acted as a deterrent for the victims to speak up. However, the introduction of s.76 and 75 has sought to address these problems. Trials for rape are stressful enough for the

complainant without having to suffer unnecessary cross-examination about their private life. The presumptions prevent this being necessary in many typical cases....