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Intro (Part 1- old law on consent)
Described by the Home Office Review, Setting the Boundaries, as a ‘patchwork quilt of provisions',
the old law on sexual offences was a hodgepodge of archaic and discriminatory requirements. [1]
Despite progressive changes by the court, the law on consent was in particularly confusing.
Intro (Part 2- SOA aims and consent issue)
The SOA 2003 attempted to clarify the law in this regard;and
whilst setting out several, detailed provisions, as a guide to both jury and judge, there is still a lot to be desired.
In a society trying desperately to rid itself of outmoded rape myths, too much discretion has been left to the jury in deciding one of the most central points of all sexual offence disputes: consent.
Pre-SOA conception of consent
Historically, consent was not defined by the law. The case of R v Olugboja was the only case to provide a real indication on the question of consent.[2]
In this case it was found that the issue itself should be left to the jury, to be given its ordinary meaning, requiring the judge only to direct the jury as regards the difference between “real consent” and “mere submission”.
Definition of consent under SOA
Issue with definition (1)
Before progressing further, we can already identify clear issues with such a definition. The words “freedom” and “capacity” can prove difficult for a jury to understand and have been found by Temkin and Ashworth to be lacking. [3]
Issue with "freedom"
Firstly, the word freedom is a loaded term and heavily context dependent; what about social boundaries such as economic or religious freedom?
Take, for example, a woman who is financially dependent upon her perpetrator and believes that, without her consent to sexual intercourse, this allowance will be retracted, leaving her destitute.
Can this truly be described as freedom even if there is no threat of actual removal?
Issue with "capacity"
capacity can cause problems for the jury, for example in the case of R v C
a twenty-eight year old woman with schizophrenia caused severe problems for the courts, resulting in a conviction at first instance, subsequently quashed by the Court of Appeal, and finding at the House of Lords that capacity had been insufficiently defined to the jury due to its ability to fluctuate.
Such terms are therefore open to jury interpretation, rendering the matter of consent still open to jury bias.
Recommendation of Review for such issues
To tackle such moments, ‘the Sexual Offences Review recommended that there should be... a non-exhaustive list of circumstances where consent was not present, an approach adopted by some Australian States.'
The intent was to serve as a ‘clear indication to the courts and to society at large about circumstances where sexual activity was unacceptable.' (Card)
Implication in SOA
Such an approach has been replicated to an extent by the exhaustive list found in s.76.
However, feeling that this was too tough a line, the more comprehensive list of situations is found in s.75: the rebuttable presumptions.
Conclusive presumptions
exhaustive list , found in s.76 (2)
. In a scenario wherein a defendant ‘intentionally deceived the complainant as to the nature or the purpose of the relevant act; or the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant,'
a lack of consent will be presumed and the mens rea of the act, that the defendant did not believe the complainant consented to the act, will be, by indication, fulfilled.
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