R v H
Court of Appeal
Citations:  EWCA Crim 2056.
The complainant was a 16-year-old girl. She was separated from her friends while celebrating New Years in London. While intoxicated on alcohol and cannabis, she voluntarily got into a car with three strangers, including the defendant. The other two men made sexual advances on her, which she rebuffed.
While in the car, the defendant asked her if she wanted to have sex, and then proceeded to remove her trousers and have sex with her. The complainant could not remember how she responded to the question, but said she told him to stop repeatedly during. She thought that the defendant might not have been able to hear her, however, as she had clothing covering her face.
The defendant was charged with rape. In interview, he lied about never having met the complainant, but DNA evidence conclusively showed that he had sex with her. The defence argued that the complainant merely could not remember whether she consented and could not exclude the possibility that she had consented. They also argued that she had capacity to consent as she had rejected the advances of the other two men in the car.
The trial judge ruled that there was insufficient evidence that would allow a jury to safely conclude that the complainant lacked capacity to consent or did not consent. The prosecution appealed this ruling.
- Could a jury safely find that the complainant did not consent or lacked capacity to consent?
- Could the jury take into account the fact that the defendant lied about having never met the complainant?
The Court of Appeal overturned the judge’s ruling. There was enough evidence for a jury to consider that the complainant did not want to have sex when she got in the car and that she tried to communicate her lack of consent during sex.
The fact that it could not be proven that she said ‘no’ when asked for sex by the defendant was not fatal to the prosecution’s case. That the complainant could not remember the incident well was also not fatal to the prosecution’s case. The jury should have been allowed to decide for themselves whether the complainant consented with capacity to do so.
The jury should also be permitted to take into account the defendant’s lies when considering whether the complainant consented. This was because it is open to the jury to find that the defendant lied because he knew the complainant was unable to consent or did not consent.
This Case is Authority For…
The fact that the complainant cannot specifically remember whether she verbally consented to a sex act does not preclude the jury from finding the absence of consent.