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Sexual offences are often the subject of scrutiny, with high profiles within the media. Many policy concerns operate in this area of law: the avoidance of ‘victim blaming’; the encouragement of reporting sexual offences; poor conviction rates and moral outrage concerning sexual offences involving children. Parliament’s most recent substantial action came with the enactment of the Sexual Offences Act 2003. Consent is a particularly sensitive issue, the starting point of which is to define whether a ‘victim’ consents if they don’t ‘say yes’, or whether they consent by ‘not saying no’.
While scientific in its approach, this page deals with sensitive issues of a sexual nature, so may not be suitable for some readers.
Section 1 of the Sexual Offences Act 2003 replaces the previous statutory offence of rape. The acts reus of rape is the intentional penile penetration of another’s vagina, anus or mouth without consent. This means that the act of penetration must be a voluntary act; only a man (with a non-artificial penis) can commit the offence of rape as a primary party, and rape can now be committed through oral penetration. The offence also goes some way to gender-neutralise the offence, as males can now also be raped: the old offence of buggery (anal ‘rape’ of a man) has now been repealed and is covered by this section. It should be noted that consent is incorporated as part of the actus reus of consent, so that not all sexual intercourse may be classed as rape. According to A-G Reference (No. 77 of 2010) , ‘intentional’ penetration is easy to prove.
The mens rea of rape requires the defendant to have no reasonable belief of consent. This means that there are two elements of consent which a prosecution must prove: a lack of subjective consent by the victim (usually fairly easy to prove) as part of the offence’s actus reus, and a lack of reasonable belief of consent by the defendant as the mens rea of the offence.
Rape is punishable with a prison sentence up to a maximum period of life.
Assault by penetration
Section 2 of the Sexual Offences Act 2003 makes it an offence to intentionally penetrate another’s vagina or anus with any body part or other object if: the act is sexual; there is no consent to the penetration, and there is no reasonable belief of consent by the defendant. This offence is used where it is a woman ‘raping’ a man with another object (such as an artificial penis) or where it is uncertain whether the (male) defendant used his penis to carry out the penetration or not. Oral penetration is not included in this offence. The offence is punishable with a prison sentence not exceeding the period of ‘life’.
Section 3 of the Sexual Offences Act 2003 makes it an offence to intentionally touch another person, where: the touching is sexual, there is no consent and the defendant has no reasonable belief of consent. This offence is much broader than the offences of rape and assault by penetration, and includes them, such that it may still be possible to prosecute where actual penetration cannot be proved. ‘Touching’ includes penetration, but may be through other objects. See R v H  below. Causing fear as to imminent sexual touching may be classed as either assault or attempted sexual assault. Sexual assault carries with it a maximum prison sentence of 10 years.
Causing another to engage in sexual activity without consent
Section 4 of the Sexual Offences Act 2003, which makes it an offence to intentionally cause another person to engage in sexual activity with neither the victims consent, nor the defendant’s reasonable belief of consent, is a very broad offence. It carries a maximum prison sentence of 10 years, but doesn’t require the defendant to be involved sexually with the victim, as illustrated by R v Devonald . ‘Cause’ is also undefined; it is assumed that a ‘more than minimal’ contribution is required, applying R v Hughes . According to R v Grout , the offence could even extend to sexual conversation. The Crown Prosecution Service recommends charging female rapists under this section.
It should be remembered that, despite moral objections, prosecutions must prove beyond reasonable doubt that the defendant committed the offence in question. Prior to 2003, the direction given to the jury on consent came from R v Olugboja , which asked juries to apply their own understanding of the term. R v Camplin (1845) held that rape was committed where the victim was incapable of communicating consent. According to DPP v Morgan , consent used to have a purely subjective test for the perspective of the defendant: an honest belief of consent was enough. A much more structured approach to consent was created by the Sexual Offences Act 2003 (SOA). The SOA 2003 provides three ways of proving consent: using conclusive presumptions; using evidential presumptions or proving a lack of ‘basic’ consent.
If a prosecution can satisfy one of the factual circumstances set out in section section 76 SOA 2003, the requirement to prove both factual consent and reasonable belief in consent is abolished. There are two circumstances set out in this section: deception as to the nature or purpose of the act, and the impersonation of someone known personally to the victim.
Deception as to the nature of the act is illustrated by R v Williams (1923), where the victim consented to sexual intercourse after being told that it would improve her singing voice. In R v McNally , gender deception was said not to be within the scope of this type of deception, as it is the court’s policy generally not to circumvent the jury. Deception as to the purpose of the act must relate to the act itself and not the act’s surrounding circumstances. In R v Jheeta , there was deception as to the purpose of the act merely because the defendant had induced consent by pretending to be the police. Similarly, the purpose of sexual intercourse was not altered by the presence (or lack of presence) of a condom in Assange v Swedish Prosecution Authority . The scope of the word ‘purpose’ is undefined in the SOA 2003: R v Devonald  advocates a wide interpretation of purpose and therefore a wide applicability of s 76, but R v B  (Conclusive consent) doubts this approach, preferring a narrow definition where a jury could otherwise be circumvented. It appears easier to prove deception as to the purpose of an act in non-rape cases, as illustrated in both how to buy generic xanax ” href=”https://webstroke.co.uk/law/cases/r-v-tabbassum-2000″>R v Tabbassum  and R v Piper , where inappropriate breast examinations and bikini measuring took place respectively.
Impersonating someone known personally to the victim was not considered in R McNally  or R v Devonald . The scope of ‘known personally’ is unknown, however it is certain that the impersonation of a long-term partner would vitiate consent prior to the SOA 2003, according to R v Elbekkay . It is assumed that this would fit within section 76.
A prosecution can use section 75 to remove the requirement of proof of factual consent and reasonable belief of consent if three conditions are satisfied. Firstly, one of the factual circumstances set out in the section must be proved to exist. Secondly, it must be proved that the defendant knew about the circumstances (there is no such requirement for conclusive presumptions). Thirdly, the defendant must be unable to point to some evidence (which need not be convincing evidence) which could challenge the evidential presumption of non-consent created by the first two conditions. This section can therefore be said to put an evidential burden on the defendant. The presumption is discharged if the defendant can ‘pass the judge’ (satisfy the third condition). If the defendant cannot satisfy the judge that there is some rebutting evidence, consent need not be proved by prosecution; it is assumed not to exist.
There are six circumstances at the prosecution’s disposal, categorised by either violence or incapacity. Under violence, the conditions are where the victim feared or was subjected to violence at the time of the act or immediately before the act; feared violence to another person or was unlawfully imprisoned and the defendant was not. Under incapacity, the conditions are where the victim was asleep, unconscious, had a disability where prevented the communication of consent or where the defendant administered a substance to the victim which was capable of overpowering consent (it is irrelevant whether the substance did or not).
Evidential presumptions can be criticised as being under-inclusive (they do not include voluntary intoxication, for example), and as being too easy to rebut, following the low threshold set in R v White .
If a prosecution cannot prove that either a conclusive or evidential presumption of consent existed, basic consent must be reverted to. Section 74 defines consent as where the victim agrees by choice, with the freedom and capacity to make that choice. According to R v Hysa , it is for the jury to decide whether there is consent and enough evidence to determine that question. R v Bree  says that drunken consent still constitutes consent.
Consent can be made conditional by the victim: in Assange v Swedish Prosecution Authority , although there was no deception as to the nature or purpose of the act, consent could still be vitiated if Assange had failed to use a condom where consent was condition upon such use. Similarly, in R(F) v DPP , deliberate ejaculation inside the victim might not be consented to, only premature withdrawal. Gender deception vitiated consent under section 74, not section 76, in R v McNally . Consent may also be withdrawn at any time during a sexual act as consent is a continuing action according to section 79(2). R v Dica  confirms that a lack of explicit consent to the risk of HIV does not vitiate consent to a sexual act, but may constitute a separate offence against the person.
A ‘reasonable belief’ of consent is an objective test which, according to section 1(2) takes account of all circumstances, including the steps which the defendant took to ascertain consent. Though as was stated in R v B  (Schizophrenic consent), schizophrenia is not to be taken into account as a circumstance; limiting the usefulness of the safety valve provided by any circumstances.
Sections 2, 3 and 4 of the SOA 2003 require the act in question to be sexual in nature. Section 78 provides two ways in which an act may be classed as sexual; either by its nature or due to its purpose or circumstances. In R v Court , smacking a clothed 12-year-old for sexual gratification (as opposed to discipline) was classed as sexual, and in R v H , pulling the track suit of the victim was classed as sexual assault.
Sexual offences against children
Sections 5, 6, 7 and 8 mirror section 1, 2 3 and 4 of the SOA 2003, but with a few key differences, and all involving children. Rape, assault by penetration and sexual assault of a child (sections 5, 6 and 7 respectively) are strict liability offences where the child is under the age of 13. They carry maximum prison sentences of life, life and 14 years respectively based only on the proof of penetration of touching. Section 8 is subtly different from a ‘child’s equivalent’ of section 4, in that the defendant may either ’cause’ or ‘incite’ sexual activity, the latter meaning to encourage.
It is irrelevant that the defendant knew not that the child was under 13, however, the presence of consent may affect the sentence given. The harshness of this section is illustrated by R v G , where a 15-year-old boy had sexual intercourse a 12-year-old girl. Both the Supreme Court and the European Court of Human Rights rejected that there should be more discretion available where sexual offences against children are concerned and that section 5 violated the right to a fair trial and presumption of innocence. Baroness Hale said that sections 5 to 8 were designed not just to protect children from paedophiles, but also to prevent children under the age of 13 from engaging in any sexual activity. However, she did warn that careful judgements were required and that the CPS does not have to prosecute every act of kissing or consensual sexual experimentation that occurs between children under the age of 13.
If an adult defendant charged with committing an offence against a child reasonably believed that the child was over 16, he has a defence. Sections 9 to 12, which create offences of ‘sexual activity with a child’, ‘causing or inciting a child to engage in sexual activity’, ‘engaging in sexual activity in the presence of a child’ and ‘causing a child to watch a sexual act’, are all strict liability offences if the child is under the age of 13, but are negated if the defendant reasonable believes that the child was over 16. Section 13 reduces the sentence for section 9-12 offence if the defendant was under 18 at the time of the offence.
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