Sexual Offences pt 2: The Common Element of Non-Consent

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• Or simply click on the map below itself, to see it clearer. And of course there’s some notes below:

Common Element of non-consent

1. s74 Consent= an agreement by choice, by someone who had the freedom and capacity to make that choice.

Agreement by choice

the V must give their consent, that it’s their ‘choice’ to agree must be expressed in some way. Failure to resist doesn’t mean automatically that the v agreed.

• R v Malone
  • Threshold for lack of consent: only some evidence of lack of consent is all that is required for the jury to decide on the issue of consent.
  • Expression of resistance: jury was entitled to convict in the case where the victim did not express verbal refusal or physical resistance. The actus reus of rape did not import a requirement that the complainant demonstrate by words or conduct that there was lack of consent

• MC v Bulgaria 2005
  • Facts: the applicant was victim of a rape and brought criminal proceedings. The applicant’s criminal proceedings regarding allegations of rape were terminated by Bulgarian state authorities because there was insufficient evidence
  • Complaint: relying on Articles 3, 8 and 13 of the Convention, the applicant claimed that Bulgarian law and practice did not provide effective protection against rape and sexual abuse and had not investigated effectively. He alleged that the State failed to fulfil its positive obligations to protect the individual’s physical integrity and private life and to provide effective remedies in this respect.
  • Holding: The ECHR held that there had been a violation of Bulgaria’s positive obligations under both Articles 3 and 8 of the Convention
  • Reasoning: under articles 3 and 8 of the Convention, member States had a positive obligation to enact criminal-law provisions effectively punishing rape and to apply them in practice through effective investigation and prosecution. The Court ruled that the State failed to fulfill its obligation to “establish and apply effectively a criminal-law system punishing all forms of rape and sexual abuse.”

• R v Hysa 2007
  • issues of consent and capacity to consent to intercourse… should normally be left to the jury to decide

Emphasis is on the ‘agreement’ to the actual physical acts which occurred. It doesn’t matter that the two don’t agree on other matters, or that v wouldn’t have consented if they’d have further info.

• R v Linekar 1995
  • The appellant promised to pay a prostitute £25 if she had intercourse with him. It was a promise he never intended to keep. On this aspect of the case, that is, that the defendant tricked the prostitute into having intercourse with him, the judge left it to the jury to consider whether his fraud vitiated her consent which was given on the basis that he would pay. The conviction was quashed. The consent given by the complainant was a real consent, which was not destroyed by the appellant’s false pretence. If anything, he was guilty of an offence under section 3 of the 1956 Act, that is an offence identical to the offence alleged in counts one and two of the present indictment. Lineker deceived the prostitute about his intentions. He undoubtedly lied to her. However she was undeceived about either the nature or the purpose of the act, that is intercourse.

• R v B 2006
  • R v B goes no further than deciding that failure to disclose HIV infection is not of itself relevant to consent under section 74.

Expression of Agreement

V has to intend to indicate agreement. If not= no intention even if it looks like it.

• R v Ciccarrelli [2011]
  • There was no consent despite earlier flirting= reasonable belief by d that he had consent for sexual surprise later? Courts said it wasn’t reasonable. But does this apply to couples?

• Assange v Swedish Prosecution Authority [2011]
  • In a situation where the d knows full well that the v is only saying yes to a certain condition, then if d deliberately deviated from that condition then we can say there was rape as the v didn’t give valid consent.
  • In a case of conditional consent,  the victim doesn’t have to say no , the Ds actions are enough. Have to consider s75 presumptions. Most of the presumptions are rebuttable, d can give info, V may not need to come and testify in person.

• R(F) v DPP [2013] EWHC 945 (Admin)
  • F, v in rape case but crown hadn’t prosecuted the case at it wouldn’t amount to rape
  • F was married to her husband of seven years he didn’t treat her very well, the sex she agreed to wasn’t really what she wanted to do. Had one child but said she didn’t want anymore. Although husband knew the wife didn’t want child he didn’t want to use a condom, so tried the method of withdrawal in the nick of time before the end. But one day he ejaculated inside her, as beforehand he says you’re my wife, youre mine and i can do whatever i want. Without the benefit of Assange there was no conditional rape according to the courts which is why they didn’t prosecute. When case came to HC for review but they did have the case of Assange as a point of reference, and the LJ agreed that conditional consent applied in this case, as long as d deliberately ignored v’s condition.
  • HC asked cps to reconsider

Capacity to agree by choice 

The complainant must also have had the capacity to agree by choice. This is likely to entail at least a minimal understanding of what the sexual act involves and its potential consequences:

• R v Williams 1923
  • sex is penetration with the risk  of pregnancy
  • To agree the v must have the capacity to understand what the acts involve. i.e. A transfer of fluids which results in pregnancy

• R v G [2008]
  • HoL rejected human rights arguments
  • But to have capacity also requires the complainant to have some independent ability to make decisions for herself in relation to sexual activity. Here we should remember that V must have the capacity to agree by choice. Inability to make the decision for oneself might be temporary or permanent. But remember that “a drunken consent, if given, is still consent”.
  • Having the capacity to disagree, look to see if the v could be in a position to withdraw if they so desire
• R v Bree 2007
  • Student joined his brothers, on a night out with some girls, and the Vs got hideously drunk. Bree decided to stay in the room to make sure one of the girls was ok, they had ended up having sex.
  • She said she couldn’t remember. Conviction quashed as judge seriously misled jury. CPS went to court assuming she was unconscious during the rape, but it turns out she was, but she didn’t agree to the activity, or if she did then she was still too intoxicated to be able to change her mind. Judge didn’t lead the jury like that, he still thought the CPS was maintaining the v was unconscious, conviction was thought to be unsafe.

CoA. 1.

• To have the capacity to agree only seems to mean to vaguely understand broadly what the sexual activity is about and be able to withdraw consent at anytime.
• Uncharacteristic consent is still consent. i.e so it doesn’t matter if you were drunk, or suffered from momentary lapse or decided to be courageous and go for a one night stand you regret.
• If C lacks capacity to express withdrawal and the d was aware for this, then he’s guilty of rape as he doesn’t reasonably believe she’s consenting.

Conditional Consent

• R v C [2009] UKHL 42 (opinion of Lady Hale)
  • Again, if any of the circumstances in s.75 (2) (d-f) can be proven without the testimony of the victim, that might enable lack of capacity to be proven too. Don’t forget too that, even if V did not have capacity to agree to the activity, D still evades liability if he reasonably believed that V had the capacity to agree to the activity.

• s.30 SOA
  • Covers sexual activity with people who have a mental disorder which affects their capacity to give agreement.

• R v C [2012]
  • C had been grooming the woman’s daughter since she was 5 for 11 years. Can the d be guilty of rape if she agreed after the age of 16. Jury found the d guilty, the complainant lacked the freedom to agree. The prosecution had not tried to argue that the V had no capacity to agree.
  • In situation where the V can give consent, and understands what sex is, the only way to get conviction if they had no freedom to express agreement

Freedom to Agree

(philosophically) the hardest concept of them all, and so again … the question is passed to the jury! The Act seems to embrace the previous law which held that a woman who as much as “acquiesces” to the intercourse gives “freely” her consent; but one who merely “submits” to it does not.

But whether V “acquiesced” or “submitted” depends upon the jury’s evaluation of the particular psychological state of V at the time of the choice:

• R v Olugboja [1982] QB 320
  • O’s friend raped two girls. While his friend is upstairs raping the other girls. O is talking to girl, but she’s crying and tells him, he doesn’t express any sympathy, suggests they should have sex and he’ll drive her home. Crown court convicts him even though the v removed her own clothes and had sex with him. Jury- v only agreed because she just submitted to him. Its never been the law that a v has to be threatened by force for the consent to be invalid, didn’t matter the v was still in a vulnerable position. Jury must consider whether V felt free , not whether they would personally feel free in the situation. Reluctant acquiescence is not the same as submission.

• R v Kirk [2008] EWCA Crim 434
  •  After living on streets for some time 13yo girl had no money or food, so she visited uncle kirk and she had sex with him for 3.75 so she could buy food
  • Did he commit rape, she agreed and had the v have capacity to agree.
  • Courts say she submitted to him. However shes the one who came to him looking for money but its was uncle’s idea to have sex.
  • Don’t have to show d coerced v to find that the d submitted.

• R v Jheeta [2007] EWCA Crim 1699
  • Confirms Olugboja lives on following 2003 Act
  • J starts sexual relationship with man. She’s 17yrs old. When she ends it, he’s determined to keep her. She came from sheltered background. Shortly after she left home and started college, she received texts for being a bad Muslim, she was terrified. She turns to jheeta. J “went” to the police to complain on his ex-girlfriends behalf. She starts receiving texts from the ‘police’, saying she gives j to give him money, escalate to instructing her to have sex with j. And later on it as like if you don’t we’ll fine you. Eventually complainant cottoned onto the fact that it was j sending all the messages
  • prosecution decided to pursue the basis of deception, j was wrongfully advised to plead guilty. But they did not quash conviction, the v was still lacking freedom to consent. J confirms reluctance acquiescence is to be looked at V’s own vulnerabilities rather than jury’s own belief.

• R v C [2012] EWCA Crim 2034
  • Girl had been groomed since 5. Later agreements after 16 made with required capacity, however courts say she lacked the freedom.
  • Even though she went off to uni he still sent messages, threatened her, to kill himself and still visited him, fear must’ve been intense… so she was still submitting to him rather than consenting as he continued to pester her.

section 75(2) (a) – (c) * of the 2003 Act, a list of situations is presented where the jury should rebuttably presume that consent was not freely given on account of various pressures. But these presumptions can be rebutted – and quite easily, too. If D offers any evidence to suggest that, contrary to appearances, the woman did (at least) acquiesce to the intercourse, or at least that he reasonably believed so, then again the jury may only convict if it thinks that the prosecution has proved its case beyond reasonable doubt.

1. 2.      Reasonable belief in the other’s consent

As well as finding non-consent, the jury must be also sure that D did not (wrongly but reasonably) believe that the complainant had given her “consent”, within the full meaning of the term above. In most cases, this should be quite easy to prove, not least because of the strictures that may be put on the term “belief”

• R v Satnam and Kewell  [1984] 78 Cr App R 141
  • To believe you have to be quite sure in your own mind, theres a great difference between believing something and suspecting something.
  • Reasonable belief is that you must reasonably believe the v meant to agree to the action in question, reasonable belief that they had capacity and they were free to make this  decision.
  • In this case there was a queue of men having sex with a girl, they said it was fine because the v wasn’t really consenting.

Twist in 2003 Act, the limitation-

There is a further hurdle which may apply in cases of mistaken identity (ie, where D believes that the other is consenting because he wrongly thinks that he or she is someone else). An interesting point of construction here was raised but left unresolved in

• Whitte [2006] EWCA Crim 2626 at paras [6] – [10]
  • Went to wrong room= rape, he pleaded guilty the only issue was that of his sentence. He penetrated b, b did not consent, he didn’t reasonably believe that that woman consented

But D may still be liable for a non-consensual offence even if he did believe that (the right person!) had given consent – if his (wrong) belief was also an “unreasonable” one. But in respect of each of the offences in s.1-4, the SOA offers only a subsection (2) by way of guidance to juries who have to decide whether any alleged mistaken belief was “reasonable”:

(2)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.

The courts have done little to offer any further guidance. We know only that if D’s mistake was caused by drink or mental disorder (including personality disorder), then it will not be reasonable, if there is nothing else which might have provided grounds for the belief:

• R v Fotheringham (1989) 99 Cr App R 206
• R v B [2013] EWCA 3
  • B suffered delusions, believed he had special powers, and created a special toothpaste. Whether or not his delusion was relevant as he never stated it hindered his reasonable belief.
  • S1,2 whether the belief is to be believed is to be determined by all circumstances.

Relevance of Deceptions

 S74 doesn’t talk about deceptions but 76 talks about nothing but deceptions.

Only limited section. The words nature and purpose have a limited definition.

• 76 (2) a the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act”
• 76 (2) b the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant

Even here, the emphasis is on the act: V must be deceived about its nature or purpose, and these are to be narrowly construed:

• R v Jheeta [2007] EWCA Crim 1699
  • What does the word nature believe?
  • That’s how the conviction was upheld, originally however the crown court had been relying on s 76 beforehand…it only applies though where the v doesn’t have the capacity to understand. Confirms s6 2a is limited, cannot be used for methods of seduction.

• R v Devonald [2008] EWCA Crim 527 (almost certainly wrongly decided)
  • A has consensual relationship with another girl consenting B. Her father angry with a about breaking up with B. He comes across a girl called cassy, on the internet, and she suggests he masturbates himself on the webcam so she can see what he has to offer. Asking a 16yo boy, no pushing needed there. Only later did it transpire that cassy was in fact mr devonald on all 7 occasions. Had d caused a to do sexual activity without consent? The purpose of the act deceived the boy. What If someone is perfectly happy to be used sexual?

• R v B [2013] EWCA Crim 823
  • B charged with causing sex without consent, girl is made to strip and perform sexual acts (bf is pretending to be other people on internet). Convicted under s76 2a
  • Not clear that she is deceived as to the purpose of the act, she probably knew why she is being told to strip. D couldn’t be convicted under s76 2a, because unlike jheeta the v was free.

• R v Green [2002] EWCA Crim 1501 (helpful pre-SOA case)
  • Got off on boys masturbating in front of them. Pretend to be a doctor researching. And got boys to masturbate in an ‘experiment’
  • Anyone who is deceived about the doing of the act, must be deceived by the purpose of the act?

• R v McNally [2013] EWCA Crim 1051
  • So what does count as the nature of the act?
  • Case of sexual assault and assault by penetration. M met girl on internet, and they chatted online for years, v thought d was a boy, when her true gender was discovered the police were then involved. Sh pleaded guilty for sexual assault by penetration. Courts said the nature of the act was fundamentally different because McNally was a girl and her gender was not determined. It only matters on the v and whether or not they wouldn’t mind.

• There is no authority yet on the interpretation of s.76 (2) b, but one might note that the prosecution did not attempt to rely on it in McNally.

The interplay between s.74 and s.76

When one reads s.74 and s.76, one might think that the two sections are supposed to be read separately. This would seem to mean that, provided that V did, with capacity, freely agree to sexual activity, then a deception about some fact or circumstance could only make any difference if it is one of the deceptions listed under s.76.

However, in Assange (above) Thomas LJ (now the Lord Chief Justice) disagreed, and held that deceptions about some very important matters relating to the sexual act might negate consent for the purposes of s.74, even if they made no difference under s.76. His Lordship said at para 88

It would, in our view, have been extraordinary if Parliament had legislated in terms that, if conduct that was not deceptive could be taken into account for the purposes of s.74, conduct that was deceptive could not be.

However, it is possible to argue that this passage was obiter, and no higher court has yet needed to decide whether it is correct.

There are three R v B cases

1 HIV

2 pestering gf

3 mentally delusional
Assange is probably correct on conditional agreement.