SEXUAL OFFENCES ACT 2003
Lecture 5.4.08
SECTION 74
A person consents if:
· he agrees by choice; and
· he has the freedom and capacity to make that choice
Under age?
Mental capacity?
Drink/drugs? (below)
Full knowledge? (below)
Duress?
Promise of reward?
I’ll give you £1M if …
I’ll give you the leading role in my next film if …
I’ll pay for your son to go to an independent school if …
‘Consent to sexual intercourse extends from passionate enthusiasm to reluctant or bored acquiescence.’ (Bree [2007] 3 WLR 600, para 22, per Sir Igor Judge, P)
Drink/drugs
1. ‘A drunken consent is still consent.’ (‘A useful shorthand, accurately encapsulating the legal position,’ Bree, para 33.)
2. This does NOT mean:
· A complainant who through drink is incapable of consenting to intercourse must nevertheless be deemed to have consented to it.
· A man is free to have sex with a woman who happens to be drunk, on the basis that her drunkenness deprives her of the right to choose whether she has intercourse or not.
3. What it does mean is that where the complainant (C) has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape. NB: Capacity to consent may evaporate well before C becomes unconscious, but whether or not this has happened depends on her actual state of mind on that particular occasion. (Bree, para 24)
Full knowledge
1. Does C have freedom and capacity to make a choice where a defendant (D) has deceived her as to his HIV status, or has simply not revealed it? The trial judge in B [2007] 1 WLR 1567 seems to have thought she did not. The question arose whether D’s HIV+ status was relevant on his trial for rape. The judge held that it was, because section 74 involves the person whose consent is being considered being in a position to be able to make a reasoned choice in the matter. For a person to be in that position, she has to have all the relevant facts, and one relevant fact is the prospect that she might become infected with HIV. So he directed the jury to consider, when dealing with whether or not she consented, whether she had freedom and capacity to make the choice if she did not know that D was HIV+.
2. This was a case of non disclosure, not of positive deceit. In this context, the Court of Appeal said that where one party to sex has a sexually transmissible disease, which is not disclosed to the other party, it does not vitiate consent.
3. Would the position be the same in a case of positive deception? If it were not, and a deliberate lie could negate C’s capacity to make a choice, where would you draw the line?
Examples
‘I love you and I want to marry you.’
‘I’m on £100,000 a year.’
‘I’ve always voted Labour.’
What if C changes her mind?
By s 79(2), penetration is a continuing act from entry until withdrawal. So an act that begins with a consensual entry can become rape or assault by penetration if C changes her mind while the penetration is continuing, and communicates this to D, who nevertheless fails to withdraw.
Mistakes about consent
1. Offences under ss 1, 2 and 3 require an absence of reasonable belief in C’s consent. Whether a belief is reasonable is to be determined having regard to all the circumstances. NB that if the mistaken belief is due to excessive drink, it won’t be reasonable (Heard [2008] QB 43, paras 15-16).
2. Prima facie, therefore, the question whether a mistake has been reasonable is one for the jury, who will have to look at all the circumstances.
3. There has been a suggestion that mistake as to the identity of the complainant is not a relevant circumstance. The effect of this would be that offences under ss 1, 2 and 3 are of strict liability so far as, but only so far as, the identity of C is concerned. This was the ruling of the trial judge in Whitta (2006), as a result of which D pleaded to a s 2 offence. The case was considered by CA not on an appeal against conviction, but because the AG thought the sentence too lenient and referred it to CA under s 36 CJA 1988. That was the only matter that CA could therefore decide, but the Court expressed some doubt, obiter, as to the correctness of the trial judge’s ruling (AG’s Ref No 79 of 2006 [2006] EWCA Crim 2626; [2007] 1 Cr App R (S) 122).
SECTION 75
You should remember the distinction between evidential and legal burdens. The evidential burden is not really a burden of proof at all. Where a party has an evidential burden in relation to a particular issue, all it means is that for that issue to be a live one in the trial, so that the jury can consider it, he must be able to point to some evidence that supports his case on that issue. This evidence, of course, can come from himself. It’s not a requirement that there has to be evidence from an independent source.
For example, if a defendant wants to rely on self-defence as his answer to a charge of assault, for the jury to consider at all whether he might have been acting in self-defence, there must be some evidence from someone that he did so. Once the issue has been raised in this way, it’s for the prosecution to disprove it as a possibility beyond reasonable doubt. If they fail to do so, the defendant must be acquitted.
THE CONCLUSIVE PRESUMPTION UNDER S 76
1. For this to apply, there must have been deception as to the nature or purpose of the act: see s 76(2)(a). So lies told by way of inducement won’t be enough for these purposes unless they are about the nature or purpose of the act. But lies told by way of inducement are still capable of negating consent if they lead to a situation in which it can be said that C did not agree by choice, or did not have the freedom or capacity to make that choice: see the definition of consent in s 74, and Jheeta [2007] 2 Cr App R 34.
2. At common law, for deception to vitiate consent it had to be as to the ‘nature or quality’ of the act. It was not wholly clear how ‘quality’ was to be distinguished from ‘nature’, but ‘nature’ and ‘purpose’ seem clearly distinguishable. You can have a full understanding of the nature of the act, but be misled as to its purpose.
3. For possible examples, see (from pre-2003 law, referred to in Jheeta, para 26) Green [2002] EWCA Crim 1501; Lineker [1995] 2 Cr App R 49.
4. Note s 77, which lists the offences to which ss 75 and 76 apply. Attempts are not included.
DEFINITION OF ‘SEXUAL’: S 78
1. Only a partial definition. ‘An approach for determining whether the activity in question is sexual where this may be in doubt.’ (Temkin and Ashworth in [2004] Crim LR 331, quoted by CA in H [2005] 1 WLR 2005, para 4.)
2. There are two possibilities:
(a) The act is of its nature sexual, regardless of the circumstances or anyone’s purpose. Note the difficulty of labelling an action as ‘intrinsically x’ when x depends on the circumstances; e.g., ‘To kill another person is intrinsically immoral.’ (What about self defence? Defence of wife or children? Partner or children? A just war? And so on.) OR
(b) Where -
(i) because of its nature it may be sexual; AND
(ii) because of circumstances or purpose it is sexual.
This analysis has to be conducted in two stages; it’s easy to miss this if you don’t read the statute carefully. See H [2005] 1 WLR 2005, paras 8-9, 12-14.
DEFINITION OF ‘TOUCHING’: s 79
1. Another partial definition. See s 79(8): touching includes …
2. In H (2005, see above) CA held that ‘where a person is wearing clothing … touching the clothing constitutes touching for the purpose of the s 3 offence.’ (See how this was possible in view of the partial definition.)
Defence counsel had argued that if pressure in some form is not brought against the body of the person concerned, there cannot be touching. There has to be some form of touching of C’s body, even if it’s only through clothing. But this argument failed. So what about -
The train on a wedding dress?
The wing on an academic’s gown?
A coat that is being worn half on and half off?
The decorations on an Ascot hat?
3. The best way of looking at H is to say that it has to be read in the context of its own facts. What CA said is not to be treated as if it were a statutory provision. The decision establishes that touching clothing without touching C’s body, even through clothing, can constitute touching for s 3 purposes.
SECTION 3: SEXUAL ASSAULT
1. The forbidden act has to be intentional (as also in ss 1 and 2), so reckless touching is not enough (Heard [2008] QB 43, para 22). To flail about, stumble or barge around in an uncoordinated manner which results in an unintended touching that is objectively sexual is not this offence, either when sober or drunk. A drunken accident is still an accident. (See para 23.)
2. The intentional touching element requires no more than a basic intent. So voluntary intoxication can’t be relied on to negate that intent. The jury must be sure that the touching was deliberate, but a drunken intent is still an intent (Heard, especially paras 17-18).
3. Note the possibility of a conviction under s 62 (committing an offence with intent to commit a sexual offence) as an alternative to a s 3 offence where the prosecution fails to establish that a touching was sexual (H [2005] 1 WLR 2005, para 15).
4. D must have no reasonable belief that C was consenting. Whether a belief was reasonable is to be determined having regard to all the circumstances. It’s clear from the Parliamentary debates that this was intended to include D’s characteristics. It remains to be seen if the courts will follow this interpretation.
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