Consent in the Sexual Offences
Consent is at the core of many of the offences under the Sexual Offences Act 2003. Section 74 defines consent as agreement ‘by choice’ where the victim ‘has the freedom and capacity to make that choice’.
When is the Victim Free to Choose?
Mere submission is not consent: there must be positive evidence of consent, either expressly or implicitly, through words or conduct: R v Olugboja  QB 320.
The presence of pressure, duress or desperation by the victim are evidence that they were not free to make a choice: R v Kirk  EWCA Crim 434. The fact the victim has been groomed or exploited also indicates a lack of freedom: R v AC  EWCA Crim 2034; R v Ali  EWCA Crim 1279.
Some forms of deception, such as tricking the victim into thinking that the defendant is wearing a condom, can vitiate consent: Assange v Swedish Prosecution Authority  EWHC 2849. However, failure to disclose STIs does not vitiate sexual consent: R v B  EWCA Crim 2945.
It is difficult to tell when deception will vitiate consent. For example, if a person tricks another into thinking they are rich, will this vitiate consent? Some cases have suggested that a distinction should be drawn between positive lies (which can vitiate consent) and passive silence (which will not): see R v McNally  EWCA Crim 1051; R (on the Application of F) v DPP  EWCA Crim 1051; Assange v Swedish Prosecution Authority  EWHC 2849.
However, a recent case has disapproved of this reasoning. The Court of Appeal in R v Lawrance  EWCA Crim 971 argued that the distinction instead depends on whether the lie is sufficiently closely connected to the physical performance of the sex act. By this logic, tricking the victim into thinking the defendant is wearing a condom (actively or passively) will vitiate consent, but tricking the victim into thinking the defendant has had a vasectomy will not.
When Does V have Capacity to Choose?
To have capacity to choose, the victim must:
- Be capable of understanding all information relevant to making the choice; and
- Be capable of weighing up that information to make a choice: R v Cooper  UKHL 42.
The victim must have the capacity to choose to have sex at the relevant time and with the relevant person.
Alcohol or drugs may cause a person to lose capacity, even if they are not yet unconscious. However, this will not automatically be the case. It depends on the degree of intoxication and whether it prevents the victim from understanding relevant information and weighing it up: R v Bree  EWCA Crim 804; R v Kamki  EWCA Crim 2335. Mere dis-inhibition is not enough to vitiate capacity or consent. The prosecution is not obliged to prove that the victim was incapable of physically resisting or saying no prove she lacked capacity: R v Hysa  EWCA Crim 2056.
Evidential Presumptions that Consent is Absent
Consent (and a reasonable belief in consent) is presumed to be absent if the following circumstances exist, and the defendant knew they existed:
‘Any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him’: Sexual Offences Act 2003, s 75(2)(a).
‘Any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person’: Sexual Offences Act 2003, s 75(2)(b).
‘The complainant was, and the defendant was not, unlawfully detained at the time of the relevant act’: Sexual Offences Act 2003, s 75(2)(c).
‘The complainant was asleep or otherwise unconscious at the time of the relevant act’: Sexual Offences Act 2003, s 75(2)(d).
‘Because of the complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented’: Sexual Offences Act 2003, s 75(2)(e).
The complainant had been non-consensually administered (by any person) or taken ‘a substance which, having regard to when it was administered or taken, was capable of causing or enabling’ them ‘to be stupefied or overpowered’ at the relevant time: Sexual Offences Act 2003, s 75(2)(f).
The defendant can rebut these presumptions. They do this by adducing sufficient evidence to raise an issue as to whether there was consent or a reasonable belief in consent. This evidence must be more than merely speculative or fanciful: R v Cicarelli  EWCA Crim 2665. If the defendant does provide such evidence, there is no need to direct the jury on section 75: R v White  EWCA Crim 1929.
Irrebuttable Presumption that Consent is Absent
If either of the following circumstances exist and the defendant knew that they existed, the victim is conclusively and irrebutably presumed not to consent (and the defendant is similarly presumed not to reasonably believe in consent):
‘The defendant intentionally deceived the complainant as to the nature or purpose of the relevant act’: Sexual Offences 2003, s 76(2)(a). This is likely limited to deceit as to whether the act is sexual, what it will achieve or what the defendant intended by performing the act, rather than broader deceptions such as the defendant’s HIV status: Assange v Sweden  EWHC 2849; R v Jheeta  EWCA Crim 1699. Broader deceptions might still indicate lack of freedom to choose (and vitiate consent), but there is no irrebuttable presumption that they will.
‘The defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant’: Sexual Offences 2003, s 76(2)(b). This does not need to cover cases where the complainant is merely deceived as to the defendant’s attributes, such as whether they are a doctor. Broader deceptions might still indicate lack of freedom to choose (and vitiate consent), but there is no irrebuttable presumption that they will.