Rape and Sexual Offences - Chapter 6: Consent

• Introduction
• Sexual Offences Act 2003
• Statutory definition of consent
• Reasonable belief in consent
• Intoxication and consent
• Consent and penetration as a continuing act
• Consent to serious harm for sexual gratification
• Consent in Child Sexual Exploitation cases
• Evidential presumptions (section 75 SOA 2003)
• Conclusive presumptions (section 76 SOA 2003)
• Freedom to consent in cases involving ‘conditional consent’
• Deception as to Gender
  • Transgender suspects
  • Evidential considerations
  • Public Interest considerations

Introduction

Consent should be carefully considered when deciding not only what offence to charge but also whether it is in the public interest to prosecute. Sometimes consent is given, or appears to be given, i.e. ostensible consent, but it is not true consent in the particular context in which the offending has occurred, for example in cases where a young complainant has been groomed. It is important to make a distinction between consent and mere submission, acquiescence or compliance.

Toolkits on consent have been created to assist investigators, prosecutors and advocates when considering issues in relation to consent and evaluating the evidence in a case.

Prosecutors are advised to view ‘Consent in Sexual Cases' - which can be accessed via the Prosecution College.

Sexual Offences Act 2003

The Act sets out the offences requiring the prosecution to prove absence of consent at sections 1-4. They are:

• rape,
• assault by penetration,
• sexual assault, and
• causing a person to engage in sexual activity.

In relation to these offences, a person (A) is guilty of an offence if (s)he:

• Acts intentionally;
• (B) does not consent to the act;
• And (A) does not reasonably believe that B consents.

In relation to many other offences there is no requirement to prove an absence of consent. Only the act itself and the age of the victim/complainant or other criteria need to be proved. They include:

• Rape of a child under 13
• Assault by penetration of a child under 13
• Sexual assault of a child under 13
• Inciting or causing a person to engage in sexual activity with a child under 13
• Child sexual offences involving children under 16
• Children under 18 having sexual relations with persons in a position of trust
• Children under 18 involved with family members over 18
• Persons with a mental disorder impeding choice
• Persons with a mental disorder who are induced threatened or deceived
• Persons with a mental disorder who have sexual relations with care workers

Statutory definition of consent

Section 74 defines consent as “if he agrees by choice, and has the freedom and capacity to make that choice”. Prosecutors should consider this in two stages. They are:

• Whether a complainant had the capacity (i.e. the age and understanding) to make a choice about whether or not to take part in the sexual activity at the time in question.
• Whether he or she was in a position to make that choice freely, and was not constrained in any way.

Assuming that the complainant had both the freedom and capacity to consent, the crucial question is whether the complainant agrees to the activity by choice.

Prior to the 2003 Act there was no statutory definition of consent but the section 74 definition is commonly referred to in pre 2003 Act cases as a guide to how the jury should approach the issue of consent.

Reasonable belief in consent

Deciding whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents (subsection (2) of sections 1 - 4). It is likely that this will include a suspect’s attributes, such as disability or extreme youth, but not if (s)he has any particular fetishes.

The 2003 Act abolished the Morgan defence of a genuine though unreasonably mistaken belief as to the consent of the complainant. The defendant (A) has the responsibility to ensure that (B) consents to the sexual activity at the time in question. It will be important for the police to ask the suspect in interview what steps (s)he took to satisfy him or herself that the complainant consented in order to show his or her state of mind at the time.

The test of reasonable belief is a subjective test with an objective element. The best way of dealing with this issue is to ask two questions.

• Did the suspect genuinely believe the complainant consented? This relates to his or her personal capacity to evaluate consent (the subjective element of the test).
• If so, did the suspect reasonably believe it? It will be for the jury to decide if his or her belief was reasonable (the objective element).

There is no requirement to communicate lack of consent. In R v Malone [1998] 2 Cr App R 447, the Court of Appeal confirmed that the actus reus of rape imported no requirement that the complainant demonstrate or communicate to the defendant a lack of consent. What was required was some evidence to be put before the jury of lack of consent, and the nature of that evidence depended on the circumstances of the case. Such evidence may include that the complainant was incapable of consenting or knowing what was happening due to the influence of drink or drugs.

Intoxication and consent

The issue of capacity to consent is particularly relevant when a complainant is intoxicated by alcohol or affected by drugs. Prosecutors must be familiar with a number of key cases on this topic.

A complainant does not consent if they are incapacitated through drink. The prosecutor should consider carefully whether the complainant retains the capacity to consent R v Bree [2007] EWCA Crim 804 paragraph 34.

A complainant does not need to be unconscious through drink to lose their capacity to consent. Capacity to consent may evaporate before a complainant becomes unconscious.  A prosecutor must consider the complainant’s state of mind at the time of the alleged assault.  R v Bree paragraph 34.

Evidence of a lack of recollection of events cannot of itself be determinative of issues of consent and capacity.

Issues of consent and capacity to consent to intercourse in cases of alleged rape should normally be left to the jury to determine. R v Hysa [2007] EWCA Crim 2056.

See also R v Khamki [2013] EWCA 2335 for directions in relation to consent and intoxication and R v MA, PC and RS (unreported January 2015) for a useful summary of preceding cases.

Complainant’s absence of memory In R v Tambedou [2014] EWCA Crim 954 the Court of Appeal held that the complainant’s evidence that she could not remember was not sufficient for the judge to remove the case from the jury.

Relevance to consent issue of a provable lie told by the defendant regarding whether sexual intercourse took place. In R v Hysa [2007] EWCA Crim 2056, the Court of Appeal the jury is entitled when considering the issue of consent to bear in mind any lies, if that is what the jury find them to be, told by the defendant as to whether he had sex with the complainant on the night in question. If the jury decided he lied because he knew the complainant was too drunk to consent or knew that she in fact did not consent, that would undoubtedly help them in their task of assessing whether he raped her.

Consent and penetration as a continuing act

In accordance with Section 79 (2) Sexual Offences Act 2003 penetration is a continuing act from entry to withdrawal. Where the defendant lacks the mens rea for rape at the initial moment of penetration he might commit the offence of rape if he becomes aware of the complainant’s lack of consent at any point thereafter and does not at once desist and withdraw. See New Zealand Privy Council case of Kaitamaki v The Queen [1985] AC 147.

Consent to serious harm for sexual gratification

A person is unable to consent to the infliction of harm that results in ABH or other more serious injury, for the purposes of obtaining sexual gratification: s.71 Domestic Abuse Act 2021, which codifies the principle set out in the case of R v Brown [1993] 2 WLR 556.

Thus, a defendant will be unable to rely on a victim’s consent to the infliction of such harm as part of any so-called ‘rough sex’ defence, and will remain liable to prosecution for ABH or GBH. An exception remains, in relation to the transmission of sexually transmitted infections (STIs) where, in certain circumstances, a person may consent to the risk of acquiring an STI.

The law applies in all situations and is not limited to those which might also amount to incidents of domestic abuse.

Consent in Child Sexual Exploitation cases

In cases involving the alleged grooming of vulnerable complainants such as youths, apparent consent to sexual activity may not amount to consent in law. In these circumstances determining whether to select; consensual or non-consensual offences may be complex.

R v Ali and Ashraf [2015] EWCA Crim1279 is of considerable assistance when considering whether to charge non-consensual offences and used the important term “context is all important”. In this case, some guidance was given on how consent should be approached in cases of child sexual exploitation:

Whilst in many cases the complainant's evidence on the issue of consent may be determinative, there will be situations where he or she may have a limited or distorted appreciation or understanding of their role in sexual relations and the true nature of what occurred. In these situations, the prosecution is not obliged to call overt evidence from the alleged victim to the effect that he or she did not consent.

R v Malone (1998) 2 Cr. App. R. 447

One of the consequences when vulnerable people are groomed for sexual exploitation is that compliance can mask the lack of true consent. In such a case, a young and immature person may not understand the full significance of what he or she is doing. They may be placed in a position where they are led to acquiesce rather than give proper or real consent.

R v Robinson [2011] EWCA Crim 916 and R v Olugboja [1981] EWCA Crim 2

In a case where a vulnerable or immature individual has been groomed, the question of whether real or proper consent was given will usually be for the jury unless the evidence clearly indicates that proper consent was given. R v Hysa [2007] EWCA Crim 2056

When reviewing cases of child sexual exploitation, prosecutors must consider:

• The age and maturity of the complainant especially in relation to the suspect;
• The history of the relationship between complainant and suspect;
• The presence of any other vulnerability of the complainant such as a learning disability;
• The existence of grooming through the provision of gifts, alcohol, insincere compliments,  apparent security, a more exciting way of life, attention and false promises;
• The provision of alcohol and drugs and the effect on the complainant;
• The use and/or threat of violence and intimidation;
• The use of other means of control such as emotional or situation control.

There are a number of additional cases involving children where the issue of consent was considered.

In R v PK and TK [2008] EWCA Crim 434 the Court of Appeal  considered the issue of whether true consent existed when a young homeless girl submitted to sexual intercourse in exchange for money to buy food. The question for the Court of Appeal was whether there was sufficient evidence to show a lack of consent. The Court reached the conclusion that in the context of this offence there was sufficient evidence. The court also considered and disapproved of the use of the phrase ‘willing submission’ to describe consent in these circumstances.

Not all grooming will vitiate consent. In R v Sean Robinson [2011] EWCA Crim 1916, the Court Appeal held that in circumstances where, due to immaturity, the complainant does not, or may not, have the capacity to understand the full significance of what she is doing, and in particular, where there is evidence of acceptance or acquiescence, then it would be open to the jury to infer she unwillingly went along with the acts, which she did not in fact wish to engage in. This judgment highlights aspects of the evidence in this case which, it was said, could be relied on to infer the acquiescence or acceptance of the complainant rather than positive consent.

In R v C [2012] EWCA Crim 2034 the Court of Appeal considered the situation where sexual abuse continued into adulthood. The Court of Appeal approved the approach taken by the prosecution. The prosecution put its case, not on the basis that the complainant had been groomed in relation to the offences committed whilst an adult, but rather on the basis that the evidence of prolonged grooming and potential corruption of the complainant when she was a child, provided the context in which, the evidence of her apparent consent, after she had grown up, should be examined and assessed.

Evidential presumptions (section 75 SOA 2003)

Section 75 lists the circumstances in which rebuttable evidential presumptions about the absence of consent apply. If the defendant did the relevant act, as defined in section 77 (the sexual activity within sections 1 - 4), and any of the circumstances specified in section 75(2) existed, and the defendant knew they existed, then: (i) the complainant is to be taken not to have consented and (ii) the Defendant is taken not to have reasonably believed that the complainant consented unless in either case, sufficient evidence is adduced to raise an issue as to the contrary.

The circumstances set out in section 75(2) are:

• Violence or fear of violence, subsection 2(a) and (b)
• Unlawful detention, subsection 2(c)
• Complainant asleep or unconscious, subsection 2(d)
• Complainant’s physical disability, subsection 2(e)
• Administering a substance 2(f)

The evidence raising an issue as to consent and the defendant’s reasonable belief in consent can derive from any source - from the defendant or the cross-examination of prosecution witnesses. Once it has been adduced, no direction under section 75 is then required – the jury decide the issues in respect of consent on the evidence, in the usual way.

Conclusive presumptions (section 76 SOA 2003)

Section 76 provides two conclusive presumptions that the complainant did not consent to the activity and the defendant did not reasonably believe that the complainant consented.

The prosecution must show that the defendant did the relevant act and that either of the circumstances in subsection 2 applies:

• The defendant intentionally deceived the complainant as to the “nature or the purpose of the act.” ( not the nature and quality of the act), or
• The defendant intentionally induced the complainant to consent by impersonation of a “person known personally to the complainant.”

The first presumption, has been considered in several cases:

• In R v Jheeta [2007] EWCA Crim 1699 where the defendant had deceived the complainant and pressured her into having sexual intercourse more frequently than she would have done otherwise, the conclusive presumption did not apply because there had been no deception as to the nature or purpose of sexual intercourse.
• The Court in R v Bingham [2013] EWCA Crim 823 held that section 76 was to be strictly construed and that it would be a rare case in which section 76 would be applied.

Freedom to consent in cases involving ‘conditional consent’

The statutory definition of consent in Section 74 was considered in a number of cases where ostensible consent was considered not to be true consent. The key cases in this area are:

• Julian Assange v Swedish Prosecution Authority [2011] EWHC 2849
• The Queen (on the app of F) v DPP [2013] EWHC 945 (Admin)
• R v Justine McNally [2013] EWCA Crim 1051

These are cases in which it is said that ostensible consent was not true consent, either:

• because of a material deception perpetrated on the complainant by the suspect (other than one which falls within section 76); or
• because the suspect failed to comply with a condition which the complainant imposed on the giving of his/her consent (which involves a deception by the suspect from the moment he/she made decision not to comply with the condition).

The High Court and the Court of Appeal considered the application of section 74 SOA 2003 in the cases highlighted above where ostensible consent was said to be vitiated. The judgments identified three sets of circumstances in which consent to sexual activity might be vitiated where the ‘condition’ was breached.

In each case the courts considered the sexual autonomy of the complainant and decided that the complainant did not consent to the sexual activity in the terms of section 74 of the 2003 Act, namely she did not agree by choice and have the freedom [and capacity] to make that choice.

The key points from these cases are: 

• There must be ostensible consent at the relevant time, usually at penetration,
• There must be a deception, other than one which falls within section 76 of the Sexual Offences Act 2003, or a condition upon which the complainant agreed to the act,
• Prosecutors should avoid defining the “concept” of conditional consent by reference to the topic or subject matter of the condition or deception in question, as these cases are no more than examples of the need to apply all relevant context when deciding issues of free choice under section 74,
• A condition or deception is an important part of the context but not all of it. Whether consent was absent may well depend on other contexts,
• The evidence relating to “choice” and the “freedom” to make any particular choice must be approached in a broad common-sense way,” [Lord Judge CJ in F], and
• The imposition of conditions embodies personal sexual autonomy which section 74 was intended to provide. Their contextual importance derives, in part, from the fact they represent positive choices made by a participant to sexual acts about which another participant can be in no doubt.

Although the three cases cited above are said to give rise to the "developing concept of conditional consent" and are considered together in the guidance in this context, they do, in fact, concern different situations. Assange and F are cases where the complainant imposed a specific condition on the giving of her consent to the sexual acts. Those being, in Assange, that the offender should wear a condom throughout the act of intercourse and, in F that he would not ejaculate inside the vagina during the act of intercourse. McNally, on the other hand, concerned a deception perpetrated by the offender during the acts of penetration (and indeed for some considerable time before), namely that she was a man. Whereas Assange and F cases were concerned with an express condition, the case of McNally dealt with a material deception as to gender by the suspect, which was deemed to vitiate consent.

It is important to note that not every case will amount to rape where a condom is not worn even though there was a prior agreement to use one. Prosecutors must consider the overall context in which the offence is alleged to have taken place and the extent to which the actions of the defendant negate the freedom to choose of the complainant or their sexual autonomy. Similarly, every instance where the suspect ejaculates inside the vagina contrary to the wishes of the complainant will not necessarily vitiate consent.

In R v Lawrance (Jason) [2020] EWCA Crim 971, the Court of Appeal considered the circumstances in which deception was capable of vitiating ostensible consent in sexual offences. It clarifies two areas of law:

• Deception that can vitiate consent. Ostensible consent can be vitiated by deceptions that are closely connected to the nature or purpose of sexual intercourse. "Closely connected" will be interpreted narrowly. The deception must be related to the physical performance of the sexual act, rather than the broad circumstances surrounding it. A lie about wearing a condom is sufficiently closely connected because it physically changes the nature of penetration. In contrast, a lie about fertility is not, because it is not related to the performance of the sexual act.
• The manner of communication of the deception is irrelevant. In R v B [2006] EWCA Crim 2945, the Court of Appeal held the defendant's failure to disclose his HIV+ status was not capable of vitiating consent. In R v McNally, the Court of Appeal concluded that R v B left open whether an explicit lie might be capable of vitiating consent. This judgment resolves this ambiguity. It matters not whether the suspect deliberately withholds information or states an explicit untruth. The fundamental issue is whether the deception is sufficiently closely connected to the performance of the sexual act.

Deception as to Gender

Transgender suspects

As set out in the Code for Crown Prosecutors, prosecutors must apply the principles of the European Convention on Human Rights, in accordance with the Human Rights Act 1998, at each stage of a case. Prosecutors are also bound by the duties set out in the Equality Act 2010. This is especially relevant when making decisions that impact on transgender suspects. Prosecutors should address suspects according to their presented gender by using the correct gender and pronouns in all documentation.

Prosecutors reviewing sexual offence cases involving suspects who are transgender need to be aware of, and sensitive to, all the relevant circumstances and should ensure the police supply as much information as possible in order to properly inform their decision making. For example prosecutors will need to know the suspect’s position in relation to the Gender Recognition Act 2004 (GRA).

Evidential considerations

When considering the issue of consent as part of the evidential stage of the Full Code Test prosecutors should be aware that the Court of Appeal in Justine McNally v R [2013] EWCA Crim 1051 determined that “deception as to gender can vitiate consent” (paragraph 27).

Whether there has been deception as to gender will require very careful consideration of all the surrounding circumstances including:

• How the suspect perceives his/her gender;
• What steps, if any, he/she has taken to live as his/her chosen identity; and
• What steps, if any, he/she has taken to acquire a new gender status.

Public Interest considerations

When considering the public interest stage of the Full Code Test prosecutors should, in addition to considering the questions set out at paragraph 4.12 of the Code, take into account:

• Whether the offending occurred as a result of the suspect’s uncertainty or ambivalence about his/her gender identity;
• The nature and level of the relevant sexual activity;
• The nature and duration of any relationship between the suspect and complainant;
• The relative ages of the suspect and complainant; and
• Where the suspect has made an admission, whether an out-of-court disposal might take the place of a prosecution and provide an appropriate response to the offender and/or the seriousness and consequences of the offending.