Evaluate Definition Of Consent After Sexual Offences 2003

Front 1

Intro (Part 1- old law on consent)

Back 1

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.

Front 2

Intro (Part 2- SOA aims and consent issue)

Back 2

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.

Front 3

Pre-SOA conception of consent

Back 3

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”.

Front 4

Definition of consent under SOA

Back 4

Under the SOA, consent is now defined by s.74 as the ability to consent by choice, with the freedom and capacity to make that choice

Front 5

Issue with definition (1)

Back 5

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]

Front 6

Issue with "freedom"

Back 6

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?

Front 7

Issue with "capacity"

Back 7

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.

Front 8

Recommendation of Review for such issues

Back 8

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)

Front 9

Implication in SOA

Back 9

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.

Front 10

Conclusive presumptions

Back 10

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.

Front 11

Demonstrative case; deception nature/ purpose of relevant act

Back 11

One of the clearest examples of deception as to the nature of the act is found in R v Williams: here, a singing teacher told a sixteen year old girl that he was aiding her with “breathing exercises,” when he did in fact rape her.

Front 12

Limitation case; deception nature/ purpose of act

Back 12

R v Jheeta is also a key case in this regard due to its discussion as to what deceptions may or may not count.

suggestion made by Judge LJ that the jury will interpret this provision narrowly, so that the deception refers only to an act very different to the one they are engaging.

For example, in Jheeta itself, the defendant was found guilty only under the general definition of s.74 lack of consent, as opposed to under s.76. This was due to the fact that the claimant knew they were engaging in sexual intercourse, despite her belief that, in doing so, she was following police orders to avoid the defendant's suicide.

Front 13

Limitation ; deception by impersantion

Back 13

The presumption in regard impersonation also has limitations. The impersonation itself cannot be anyone, otherwise many Lothario roles we see on our TV's, pretending to be film stars, to seduce a woman, would be guilty of an offence. ‘The person must be personally known to the complainant and the complainant must intentionally have been induced to consent by the impersonation.'

Front 14

Argument for cautiousness re: conclusive presumptions

Back 14

issues of compatibility in regard the European Convention on Human Rights (ECHR) Article 6(2), the presumption of innocence,

and may well explain Parliament's reticence to extend the list further. The right to the presumption of innocence can be lost if it serves a legitimate aim, is justifiable, and is a proportionate response to that aim.

Front 15

Conclusion

Back 15

As Card notes, it would be almost unthinkable for a jury to find a defendant innocent in one of the above scenarios and therefore the loss of Article 6(2) may be justified. [11]

I would argue there are further scenarios, in the rebuttable presumtions for example, where an unbiased jury finding the Defendant innocentis unthinkable

e.g. the defendant had caused the administration of a substance, rendering consent void.

Parliament has, arguably, been too cautious in their determination to leave so many circumstances, rebuttable

Front 16

Intro- evidential presumption

Back 16

The evidential presumption requires proof to be adduced either to raise the issue with the claimant's valid consent, or to display a reasonable belief in consent on the part of the defendant

Front 17

Reasons for jury bias

Back 17

This is a particularly difficult area and has often been privy to jury bias, caused by knowledge of previous sexual involvement and horrendous issues surrounding voluntary intoxication, and individual sexual preference.

Front 18

Components of rebuttable presumptions

Back 18

The list includes violence, threat of violence, unlawful detention, unconsciousness, physical disability and causing the claimant to administer a substance which renders their consent invalid. SOA 2003 sec.75(2)

Front 19

Danger of rebuttable presumptions

Back 19

Herring notes that such rebuttable presumptions could well prove difficult to explain to a jury: for example, if the defendant argues that the threat, or use, of violence came before the couple had made up, leading to a valid consent to intercourse. Would this be enough to rebut the presumption? (i.e. make evident that V consented, and D reasonably believed V consented

Front 20

Consequences

Back 20

If so, very dangerous, as leaves door open to repeated offences by abusive partners etc. so long as they secured a “yes”, however unwilling, before the act occurred.

Furthermore, Herring argues ‘court guidance on the meaning of, ‘sufficient evidence is adduced to raise,' in the case of evidential presumption of mens rea is eagerly awaited'.

Front 21

Most problematic area

Back 21

-defining limits of consent when certain acts have been voluntarily undertaken by C

-Parliament have left issues open to rebuttal to cover such moments as voluntary intoxication, along with voluntary sadomasochism or detention. There are countless scenarios where an individual could be seen by the partner to be engaging in consensual sexual intercourse.

Front 22

Cause of problem

Back 22

Yet here we find a problem: what counts as a reasonable belief in consent? Just because an individual has frequently consented to harm for sexual gratification before, does not necessarily mean they do now; just because someone has voluntarily become intoxicated, does not mean their drunken demeanour implies consent.

Front 23

Voluntary intoxication intro

Back 23

Voluntary intoxication is a huge issue, as it falls between the areas of capacity to decide, unconsciousness and the inducement of substances. In 2005, Amnesty International found that two thirds of all people asked believed that an individual who has been drinking is partly to blame for what has happened to them, including jury members, police officers and prosecutors.

Front 24

Combination of voluntary intoxication and lack of guidance of jury re: consent problems

Back 24

Such belief's led to the appalling conclusion in R v Dougal that ‘drunken consent is still consent', failing to discuss capacity at all. [15] R v Bree readdressed this balance, concluding that drunken consent was still consent, as she had decided to argue that she had capacity, despite her intoxication.

Front 25

Part 1

Back 25

Rape and other sexual offences bare one of the highest attrition rates of all crimes and this is unsurprising considering the wealth of hurdles a victim must overcome to gain a conviction. From dependence on, to fear of, the perpetrator; to the dread of knowing you will have to recount the experience at trial: the last thing a victim needs is the knowledge that their own refusal may be found wanting.

Front 26

Conc Part2

Back 26

In conclusion it must be found that Parliament has not gone far enough in directing the jury as regards consent. By not taking a firmer hand and creating a more comprehensive list, Parliament has left the door open to the real possibility of jury bias. In addition, whilst a non-exhaustive list, Card finds there is a whole host of other frequently occurring scenarios, from, ‘threat of dismissal or economic harm, threats of non-immediate violence, abuse of a relationship of power and self-induced mistake as to the nature or purpose of the act,' which are not addressed in the SOA. [17]In such instances the burden will be on the prosecution, from the start, to prove the absence of consent and of a reasonable belief in consent. In such a “he said, she said” scenario, it seems unthinkable that the jury should be given no more direction than an incomplete list of possible indicators, which may frequently bare no guidance to the matter at hand. Parliament have been too cautious, leaving the UK in a position where almost every form of consent may be rebutted and placing the issue itself predominantly in the hands of a jury which, corrupted by centuries of rape misnomers, may well be blind to the truth.