Consent and the sexual offences: re-evaluating the realities and fallacies of a precarious relationship

Dom Bridge

The SOA2003 is practically a convenient statute. Take rape as an example: the actus reus (AR) and mens rea (MR) are both tolerably clear and defined. The former is penile penetration of the mouth, anus or vagina[1],and circumstantially, V’s non-consent[2].The mens rea requires that the penetration is intentional[3],and that D “does not reasonably believe that [V] consents”[4]. This article argues that the AR requirement of non-consent, in sections 1–4 of theSOA is — in reality — moot adding nothing to the offence. That is to say, notwithstanding the statutory requirement of non-consent, the actual existence of consent makes no difference to convictions or acquittals under this Act. It is submitted that there are strong grounds for lifting this moot requirement from the SOA.Throughout I will refer to D’s belief in lack of consent as the MR consent element, and to the actual lack of consent as the AR consent element.



1.    Observations in Practice


In practice, the requirement of AR non-consent does not have any impact on case outcomes. This is best explained by considering two scenarios: firstly, where AR consent is satisfied, and alternatively, where it is not.


(a)  Legal results:


a.    Where the AR and MR consent elements are satisfied:

Let us deal first with factual scenarios where the AR consent element is satisfied; that is, where V does not consent. Clearly under the existing statute this can lead to a conviction.Lifting the requirement for AR non-consent from the statute would clearly make no difference—that is to say, where a requirement is fulfilled, removing it asa requirement makes no difference. Convictions or acquittals would be unaffected.


b.   Where MR consent is (prima facie) satisfied though AR consent is not:

Dealing alternatively with the slightly more challenging scenario in which AR consent is not fulfilled—that is to say that V did consent to the sexual conduct, though D lacked reasonable belief in her consent. Under the statutory regime this would lead to an acquittal. Of course, it could be seen that this scenario would lead to a conviction where the AR consent element was lifted from the statute. However, it is not the SOA requirement that D does not require that D lacks belief in V’s consent—it requires that D“Does not reasonably believe” in V’s consent. It is submitted that there cannot be a lack of reasonable belief in consent where there is in fact consent. The AR consent element is therefore, once again, moot.

For a conviction under s1–4 of the SOA, at least some level of co-operation from the victim is required, starting with a complaint to the police, progressing to providing evidence as a witness. Yet, under this fact pattern, such co-operation is difficult to envisage. After all, from their perspective, they consented to a sexual act and therefore have not been wronged. They therefore have no reason to complain to the police or aid the pursuance of any prosecutions. This appears particularly pertinent when it is considered that there may likely be some willingness to protect a party to whom V has consented to being sufficiently intimate with in order to fall within the scope of the SOA. In consequence therefore, it is conceded that removing the AR consent element would lead to a greater scope of conduct being technically criminal. However, in practice, for the above reasons – especially the requirement of some victim co-operation – this would not be the case. In practice therefore, the AR consent element remains moot.

Therefore, while a conviction under the current law would simply be ousted by the AR requirement of non-consent where the AR consent element is not satisfied, the above considerations indicate that disposal of the AR consent element would make no difference to case outcomes. Clearly the AR consent element, if lifted, could not be used to oust convictions; it is submitted, however, that the MR consent element can be used such to oust all convictions (whilst ensuring the same convictions)that would be under the current regime.


(b)  Practical considerations:


While lifting the AR consent element would not change any case outcomes, it would make a difference as to how proceedings would occur. In R(Monica) v DPP[5]it was held that broad identity deception did not vitiate the victim’s consent under s74 of the SOA 2003. As such, there was no lack of consent and therefore the alleged perpetrator could not be convicted. The same conclusion could not be reached in the same way if the AR requirement of non-consent was lifted from the statute. However, that is not to say that s74[6]would lose purpose. S74 attempts to define “consent”. The vast majority of caselaw making use of this definition does so to determine whether there was consent to satisfy the AR requirements[7].The principal reasoning for this appears to be that the courts can definitively say that some situations do and do not vitiate consent. Yet, the same result can be achieved through using the statutory definition of consent in order to inform whether a reasonable belief in a lack of consent truly existed. Taking the facts of Monica, in which V was deceived into having sexual intercourse with an undercover police officer whom she claimed she would not have intimately engaged with if she knew his true identity. Precisely the same arguments could be made regarding “choice”, “freedom”, and “capacity to make that choice” when looking at the MR consent element, from the perspective of the defendant, as satisfying the AR consent element. In Assange[8], for example, it was ruled that deception as to the use of a condom was capable of vitiating consent, as far as the AR is concerned. Implicitly, it should therefore also be capable of satisfying the MR requirements. This supplanting of the statutory definition of consent into the MR is beneficial, for it only requires investigation into whether D lacked reasonable belief in V’s agreement by choice, including whether V had the freedom and capacity to make that choice, and not, rather more vaguely, whether D lacked a reasonable belief in V’s consent.

The result of lifting the AR consent element requirements therefore, would, without changing case outcomes, shift the focus of the enquiry very much towards the defendant.



2.    AR, MR, and the wrong at the heart of Rape:


Taking the most serious of the sexual offences, rape[9],there are a variety of different arguments as to the true wrong at the heart of the crime. Donald Dripps, suggesting that “People generally, male and female, would rather be shot, slashed, or beaten with a tire iron”[10],sees that the true underlying wrong is one of violence. Gardner and Shute subscribe to a more conventional view that the wrong is one based around the violation of the victim’s autonomy[11].This they convincingly offer with the example of a defendant engaging in intercourse, using a condom, on an unconscious victim. Few would dispute that this is, and should be rape, under the SOA, though no violence has necessarily occurred.

Taking the two consent requirements in the SOA, it is submitted that there are two potential wrongs at play. The requirement that D “does not reasonably believe that [V] consents”[12]focusses on the defendant. This is contrary to Garner and Shute’s conception of criminalising conduct towards another who doesn’t consent, suggesting instead that the wrong at the heart of the offence is D’s engaging in conduct with another who he believes to be not consenting.

An alternative, deriving from the AR requirement that the victim does not consent to the conduct, suggests a wrong in line with the morally grounded violation of autonomy perspective. That is, making it an element of the crime that the victim does not consent suggests that the offences were only designed to deal with fact patterns where that was the case, and as such that the violation of autonomy is the true wrong.

In attempting to identify the true wrong however, the statute suggesting these two possibilities is not helpful. There are two possible ways of reconciling this.

The first is to account for the practical unimportance of the AR consent element requirements, as established above, and note that this notwithstanding, the legislature chose to include it in the legislation as an express requirement for the commission of the offences. That is to say that lawmakers intended to make clear the requirement that consent should be absent specifically to illustrate the wrong that the statute was addressing. This explanation is to a large extent convincing, until one takes steps to consider the process behind it. The inclusion of this would mean that the ever-busy legislature had taken time to consider the true wrong behind a statute and then included it in the statute, in spite of the fact that it makes no practical difference to the results of any criminal pleadings. This view becomes particularly pertinent when the general public’s conception of the offence is considered.Even the Metropolitan Police fall into the trap of suggesting rape is merely intercourse without consent: “Rape is when a person intentionally penetrates another's vagina, anus or mouth with a penis, without the other person's consent”[13]is their most basic definition. The key point is here that when people consider rape, they do not instantly jump to the idea that D must lack reasonable belief in consent — they immediately jump to the centrepiece of the offence being the lack of consent. It is more likely therefore that the legislation was built around the requirement of non-consent. As such, the view that the AR non-consent element requirements were included in the legislation in order to highlight the wrong, notwithstanding the lack of practical impact, is not a convincing one.

This conception would also aid lawyers in exacting what consent is, in the context of the SOA’s lacking definition[14].The MR consent element suggests that consent may be subject to a negative resolution procedure—requiringD to lack (a reasonable) belief in its non-existence. On the contrary, thatthe victim “does not consent” poses a positive frame around consent, requiring that consent be given (not implied) or simply not withdrawn. As such, the express inclusion of the AR consent element could be interpreted as an attempt by lawmakers to suggest a basis for consent within society.

The alternative reconciliation is to suggest that because the AR consent element adds nothing substantively to the offence, it cannot inform its wrong. As such, this leaves the only remaining wrong in the key sexual offences to be that ascribed by the MR consent—D’s intentional engagement in conduct notwithstanding his lack of reasonable belief for V’s consent.



3.    Evaluation


There are a number of reasons why dropping the moot AR consent requirement from the legislation would be beneficial. Firstly, it would ensure the correct scope of D’s liability. The popular conception of rape and other sexual offences focussing around a prescribed conduct performed with a lack of consent suggests that the basis for the offences is one of strict liability, with elements of subjectivism attached in order to protect defendants from wrongful conviction. That is to say that the starting point of the offence—the offence envisaged by the majority when one talks of rape—is one of strict liability; having sex with another, where the other does not consent. Of course, this is not the case, though that is beside the point. Rape is one of the most serious offences, carrying a maximum penalty of a life sentence. There should therefore be no possible conception of the offence based around or close to any strict liability. Removing the AR consent element requirements solves this.

The benefits of this approach are numerable. Firstly, the unwavering focus on the defendant is appropriate for, and reflective of the level of crime. As a result, the inquiry is by nature less focussed on the victim of the crime. In lifting the AR consent element requirements, the victim would no longer have to prove that they did not consent. Enquiry into the most personal aspects of the victims’ lives would be less necessary.

Though the effects of this in practice would be necessarily diminished—witnesses will (and should) always be subject to some form of cross-examination—any, even minimal, improvements within reach should be afforded to victims. It is in the public interest that those who commit the most serious crimes should face their day in court, and therefore any work that would make victims more likely to come forward—in this case with no change to the crime involved—should be welcomed.


With thanks to FP Callow for his contributions.







[5][2018] EWHC 3508 (Admin)

[6]And indeed the presumptions in s75 and s76

[7] R(Monica) v DPP, ex parte Boyling [2018] EWHC 3508 (Admin), McNally [2013]EWCA Crim 1051, [2014] QB 59, Assange v SwedishProsecution Authority [2011] EWHC 2849(Admin), non-exhaustively

[8] Ibid.

[9] S1

[10]D. Dripps ‘Beyond Rape: An Essay on the Difference between the presence ofForce and the Absence of Consent’ (1992) 92 Colum L Rev 1460, 1792

[11] J.Gardner and S. Shute, ‘The Wrongness of Rape’, in J. Horder (ed.), OxfordEssays in Jurisprudence (Clarendon Press, 2000), p. 205.