I was struck recently whilst reading the papers in relation to allegations of sexual predatory behaviour how those involved had different understandings of what consent means. There seemed a vacuum of knowledge in this area. This was even more surprising given the advent of the #MeToo movement and the concept of being “woke”.
The dictionary has the definition for consent as:
Permission for something to happen or agreement to do something.
That seems quite straight forward perhaps, but the law is anything but that.
For a long time there was no statutory definition of consent but one has been in place for several years now and since the enactment of the Sexual Offences Act 2003.
Section 74 defines consent as “if he agrees by choice, and has the freedom and capacity to make that choice”. What needs to be considered in applying this test is:
- Whether the person 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.
On the basis that freedom and capacity has been established, the question goes back to essentially the dictionary definition: did the person agree to the activity by choice?
In addition to the issues of freedom and capacity an individual must also take steps to satisfy himself that the other person consented to the sexual act involved. In order for the defence to be raised therefore the accused must go further and demonstrate they had a reasonable belief that the other person was a consenting party.
Notwithstanding the fact that alcohol and drugs as disinhibitors often do increase the likelihood of casual sexual relations, it has been held by the courts that inebriation through such substances can lead to incapacitation and therefore effectively remove the defence. The question of consent and the circumstances in which the sexual act came about and then whether there was consent is one usually determined by a jury.
The offences with which we are concerned here are contained between sections 1 and 4 of the Sexual Offences Act 2003 (Rape, assault by penetration, sexual assault and causing a person to engage in sexual activity).
Consent can be withdrawn even where initial penetration was agreed and therefore a continuation in the face of a “no” would remove consent. One cannot consent to serious harm for sexual gratification where that harm would result in Actual Bodily Harm (s47 Offences Against the Person Act 1861) or even more serious harm.
Sections 75 and 76 of the 2003 Act seek to vitiate consent further with a set of rebuttable and then conclusive presumptions setting out circumstances in which it would be evidentially more difficult to demonstrate consent: where the other person was asleep or unconscious, where violence had been used of threated, where there had been an unlawful detention, the other person had a disability and where a substance had been administered.
Where there has been an intentional deception as to the nature and purpose of the act or an intentional impersonation of another either of which induce consent, the defence falls away, though this section (s76) is to be invoked sparingly and strictly construed.
The issue of consent becomes a little more complicated when looking at offences created by the 2003 Act that relate to children. Those offences that appear between sections 5 and 8 relate to sexual offences similar to those listed above but where the complainant child is under 13. Such offences remove the possibility of consent as a defence and so for example under section 5 the prosecution need only show there was an intentional penetration of the vagina, anus or mouth and that the other person is under 13 (usually demonstrated by production of a birth certificate).
Where the complainant is 13 or over but under 16 consent as dealt with and defined above is a valid defence provided it is accompanied by a reasonable belief on the part of the individual that the other person was 16 or over. These type of offences offences are contained within s9 – s15a of the Act; they also apply where the other person is under 13 and in those circumstances the defence of consent is again removed entirely.
In addition there are a slew of offences particular in type where the age of consent rises to 18 but these will be the subject of a separate blog.
To employ an old fashioned term “No means No” but there are always grey areas, made more opaque by the advent and growth of technology. If you find yourself in one of those grey areas by virtue of an unwanted invite into the realms of the criminal justice system seek one of our experts for some experienced advice and assistance.
At Hodge Jones & Allen we have a dedicated crime team whose practitioners have specialist experience advising and assisting clients in sexual offence cases. For more information please contact us on 0808 274 6916 or request a call back.