A little still she strove, and much repented…

…and whispering, “I will ne’er consent” – consented
Lord Byron

One of the better ways to put any law to to the test is to see just how easily you can conceive of a situation in which, despite the best intention of legislators, the law ends up looking not only unenforceable but just plain stupid.

This week we’ve seen the launch of the Home Office’s ‘No’ means no campaign – £500,000 of public money spent on pushing the new statutory definition of consent in the Sexual Offences Act 2003 with the line that men who fail to ensure they ‘actively’ obtain consent could find themselves on the wrong end of a charge of rape.

You can see the two posters the campaign is using below:

The question that has to be asked, here, is whether this is really all that it’s cracked up to be?

The government claims to have clarified the legal defination of ‘consent’, but if you actually look at the relevant clauses in the Act, 74-76, you find things aren’t quite as straightforward as this campaign is trying to claim:

74 “Consent”

For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.

75 Evidential presumptions about consent

(1) If in proceedings for an offence to which this section applies it is proved-

(a) that the defendant did the relevant act,

(b) that any of the circumstances specified in subsection (2) existed, and

(c) that the defendant knew that those circumstances existed,

the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.

(2) The circumstances are that-

(a) any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him;

(b) any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person;

(c) the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act;

(d) the complainant was asleep or otherwise unconscious at the time of the relevant act;

(e) because of the complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented;

(f) any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.

(3) In subsection (2)(a) and (b), the reference to the time immediately before the relevant act began is, in the case of an act which is one of a continuous series of sexual activities, a reference to the time immediately before the first sexual activity began.

76 Conclusive presumptions about consent

(1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed-

(a) that the complainant did not consent to the relevant act, and

(b) that the defendant did not believe that the complainant consented to the relevant act.

(2) The circumstances are that-

(a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;

(b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.

So what have we actually established here, in law.

Well, we now a have defined set of situations in which the law considers that consent has conclusively not been given; where violence or the threat of violence is used by the assailant, where the victim is unlawfully detained by their assailant, where the victim is asleep, unconscious or drugged, or if the victim has a physical disability which renders them incapable of indicating their consent, or otherwise.

All of which is fine as far as it goes, even if the act does appear to doing little more than stating the bleeding obvious at this point.

As regards the more general issue of consent, what the law actually says is not that a defendant in a rape case has to prove that consent was given the the alleged victim, but rather that the law presumes that consent was not given unless the defendent can put forward evidence which raises an ‘issue’ of whether consent was given – in effect this reads rather like the idea of reasonable doubt, only in reverse to the manner in which it’s usually applied.

Of course, the real problem arises inasmuch as the critical moment in which consent is either given, or not given, generally takes place in private with only the alleged victim and their assailant present.

So the question still remains – how in such a situation, where the only evidence you have are two differing accounts of the same incident with no physical or other evidence to demonstrate whose account in the truthful one, do you establish whether consent was given or not?

If you take the government’s campaign at face value, then you would think the law would presume automatically that consent was not given, and that its the alleged perpetrator who must, therefore, be helf to be lying – except…

If the only issue at stake in a particular case is consent then it follows that be redefining the law on consent in terms of a presumption that consent was not given unless shown otherwise, one is applying a presumption of guilt to the defendant, who the law now requires much show that consent was obtained. In effect, if someone is charged with rape and their only defence is one of consent, then the law requires them to prove their innocence, not the state to prove their guilt.

All of which brings us to Article 6 of the Human Rights Act, the second paragraph of which states, perfectly clearly that:

Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

And, okay, there may a wrinkle to be played out in terms of being proved guilty ‘according to the law’ but on balance you would have to take the view that somewhere along the line just such a case – in which consent is the sole issue at stake – will give rise to a challenge to this particular law on the grounds that this new definition of consent applies a presumption of guilt, and we could easily be back to square one.

If anything, far from clarifying the position on consent, the government appear to have succeeding in creating more confusion – before this Act was passed, we may not have had a statutory definition of consent, but at least we could be pretty sure that the definition we had was legal. Now we can’t even be sure of that – at least not until a test case does crop up and the matter is fully consided by the judiciary.

This is all very well, but its not the matter of the amended interpretation of consent, on its own, that makes an ass of the law here. For that we have to look closely at something else this particular covers and how that interacts with together with the new definition of consent to create, in the right circumstances, a near perfect defence in rape cases.

Here’s the problem – in addition to rejigging the legal definition of consent, the Act also adds several new offences in which consent can be used as a potential line of defence.

One of the problems with the law on sex offences that existed prior to this Act coming into force was that it was rather limited in the scope of offences it defined. Basically, what prosecutors had to work with was either rape, which was pretty narrowly defined in terms of penetrative sexual intercourse, and the lesser offence of sexual assault. The upshot of this was that some of your more imaginative assailants could get pretty medieval on their victims and still not catch for anything more serious than a charge of sexual assault – as to how medieval, the fact that one of the new offences the Act adds to the statute books is ‘assault with penetration’ which covers the use of foreign objects in various orifices, should give you a fair idea of where we’re going with this – this new offence, by the way, carries the same mandatory life sentence as rape, which is essentially why it was introduced.

However, its another new offence, ‘Causing sexual activity without consent’, as defined by clause 4 of the Act where the real interest lies:

4 Causing a person to engage in sexual activity without consent

(1) A person (A) commits an offence if-

(a) he intentionally causes another person ( B ) to engage in an activity,

(b) the activity is sexual,

(c) B does not consent to engaging in the activity, and

(d) A does not reasonably believe that B consents.

(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.

(3) Sections 75 and 76 apply to an offence under this section.

(4) A person guilty of an offence under this section, if the activity caused involved-

(a) penetration of B’s anus or vagina,

(b) penetration of B’s mouth with a person’s penis,

(c) penetration of a person’s anus or vagina with a part of B’s body or by B with anything else, or

(d) penetration of a person’s mouth with B’s penis,

is liable, on conviction on indictment, to imprisonment for life.

(5) Unless subsection (4) applies, a person guilty of an offence under this section is liable-

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years.

The real interest here lies in subclause 4(c) – where rape, by definition of the act itself, is an exclusively male preserve, here we have an offence, which carries a mandatory life sentence, in which a woman could be the perpetrator and a man could by the victim. And all things being equal, where illuminating physical absence is lacking, the one defence open to woman facing such a charge is that the man consented.

By now you should be able to see where this is going.

You see, given the way the law is framed, the logical defence for a man facing a rape charge based solely on the issue of consent, is not only to claim that woman consented, but also to claim that they didn’t, filing a complaint of causing sexual activity without consent.

Of course, in some cases such a claim will be far less plausible that other – if the man happens to be 6’4″ and built like a brick outhouse and the women is 5’2″ and seven stones wringing wet then the man’s going to have a hard time making such an allegation stick – but if the size/strength difference is nowhere near so marked then this could be a reasonable enough claim to require investigation, or even a prosecution…

…in which case it becomes the woman’s turn to try and prove that the man consented to having sex.

Oh, and before anyone comes up the obvious physiological line of argument, lets just make it clear the mere fact of stiffy does not conclusively prove consent – remember what the Home Office are saying, only a clear ‘yes’ will do these days.

Where this idea becomes particularly pertinant is in relation to the suggestion, following the recent Swansea case, that the law on consent might be ‘clarified’ to allow for situations in which a judge or jury could decide that a woman was ‘too drunk’ to give consent. Now, logically – and legally, given provisions of Article 14 of the Human Rights Act, which prohibits discrimination – if a woman can be too drunk to give informed consent to having sex, then so can a man. Physical capacity is not proof of informed consent.

So, in a situation where both parties to the allegedly non-consensual sexual act were pissed out of the faces – not an uncommon occurrance by any means – we now have possibly of both facing a mandatory life sentence for not consenting to have sex with each other, which rather begs the question as to when the Home Office is going to run a similar campaign to its current one, only this time targetted at women.

I know this sounds like a completely absurd situation – it is – but the fact that it sounds absurd does not make any less of a real possibility. Let’s face it, if I can spot this particular angle then you can bet your life that somewhere down the line an imaginative defence barrister is going to see exactly the same thing, the difference being that I’m playing with a thought experiment while they’re likely to be defending a real case.

The upshot of all this is that while its far too early to judge whether the new ‘improved’ interpretation of consent will actually result in more convictions for rape – remember, by far the biggest factor in low conviction rates is cases not getting to court in the first place – the one thing we can be pretty sure of is that by ‘clarifying’ the law in this way, the government has succeeded in substantially increasing the risk that miscarriages of justice will arise out of rape cases where consent is the sole issue on which a case is decided while, at the same time, creating an uncertainty around the legality of the manner in which the law treats consent that, if it were to be ruled incompatible with ECHR/HRA article 6 provisions for the presumption of innocence, could open to the door to men who have been quite rightly convicted of rape, being freed on a legal ‘technicality’.

All of which is really stupid – if not quite so stupid as spending £500,000 on an advertising campaign in the mistaken belief that you’ve actually done a good job.

  • redpesto

    Interesting post. The outcry over the Swansea case ignored the fact that the woman couldn’t remember consenting, so any assumption that she didn’t would do exactly what you’ve warned about. Also, if the man didn’t get her drunk, to what extent is her state of intoxication his legal responsibility (especially if he’s been drinking as well)? The Home Office might as well run a campaign saying ‘Don’t go near her she even vaguely pissed’, thus probably criminalising most of the Friday night booze crowd at a stroke. (That said, does the legislation cover predation on drunk women who say yes?)

    There are two further issues I’ve wondered about. One, is a verbal ‘Yes’ the only legally enforceable/defendable form of consent? (If s/he nods, will that stand up in court?). Also, to what is either party consenting to when they say ‘yes’? The possibility of (deliberate) misinterpretations as to what sexual acts have been agreed to still seems possible within the legislation. (Incidentally, despite the poster in the other entry, most S/M players understand the need for consent on specifics as well as the general ‘having sex’ stuff.)

  • jean

    Is this for real! Spiking drinks is a real problem…Most people don’t know what has happend to them, perhapps we should be asking why wasn’t the money invested in working with clubs and bars and ensuring people are kept safe… rather than have this tedious debate about the Oh god did I really do that!!!

    If you have been abused or raped court is the last place you want to be..interesting as your legal exposition is …

  • We’ll end up exchanging consent forms prior to the “act”.

  • Are More Experts Really Needed?
    I’ve bloggedabout this before here. And now we can see here what the Home Office proposes to do. It is

  • If you’d bothered to look at all at the history of sexual offences in this country, you would see why the Sexual Offences Act is a very positive step forwards.

    The presumptions may be “bleeding obvious” to you, but because the law before required a man to *not believe* in the existence of consent, there were cases where violence was being used, and a man had sex believing, or not being in doubt of consent on the part of the woman, and were (rightly, as the law then stood), acquitted.

    The burden now is that the man must actually AND reasonably have held a belief that the woman was consenting in order to be acquitted if she was not actually consenting. This also means that there is no issue of recklessness now, where juries had to inquire if men were reckless in failing to form an opinion about consent. That is now, thankfully, gone.

    As to actually proving consent or its lack, no government can draft legislation to improve the situation, by the nature of the crime; however, there are instances where consent would be inherently improbable which before would not have lead to conviction, where now they would. This is the best that can be done.

    Finally, your suggestion that both parties to a sexual act could be prosecuted for having sexual intercourse with each other is risible and clearly mistaken: The offences by definition require proof that the party sinned against was not consenting. If the other party actually caused the sex act against the other’s will, then by definition they were consenting. Perhaps the next time you decide to rubbish legislation you could read a book or article first eh?

  • Unity

    Marcin:

    First, it is untrue to say that there is no longer a test of ‘recklessness’ in rape case – far from it, the element of ‘reasonable belief’ is precisely such a test.

    For example, a jury can be directed to consider the question of capacity where the complainant was drunk at the time of the alleged rape, in which case the test of capacity is that which exists in common law, i.e. knowledge and understanding. As such, a man could be deemed to have mens rea by recklessness if he proceeds to have sex with a woman who is so drunk as to be incapable of reasonably consenting.

    The recent failed Swansea case was NOT about capacity, although that issue came up due to the judge’s comment about drunken consent, but about the complainant’s memory – she could neither adduce that she’d had sex nor whether she’d consented or not, therefore it was not possible to establish that an offence had even been committed.

    This is the where the real problems kick in when it comes to alcohol and capacity – it is quite possible for a woman to be so pissed that she would be, in common law, incapable of giving consent or incapable of communicating their consent or otherwise (which amounts to the same thing) and yet retain sufficient memory of what occurred to make a complaint and give reasonable evidence.

    However, aside from intoxication, alcohol is known to impair the transfer of information from short-term to long-term memory. It is also possible, therefore, for a woman to get sufficiently drunk that her memory of events is severly impaired, even to the point of not remembering that she’d had sex with someone, and yet still have had the capacity at the time to give consent. One cannot infer lack of capacity from lack of memory and vice versa – Catch 22.

    All the judge has not explain his ‘drunken consent’ comment, what I suspect has happened here is that government’s efforts to tighten the legal parameters of consent have, for the time being at least, blurred the dividing line between consent and intent. If the requirement in a rape case is to show ‘positive’ consent, i.e. that there was actual agreement to have sex rather than implied consent by failure to say ‘no’, then the law is asking for a form of consent which is close to an expression of intent – and drunken intent is intent, at least as far as the oft-quoted precedent goes.

    As for the point about the possibility of both parties being prosecuted, I’ve either failed to make the point I intended to make or you’ve not seen where I was going with that point.

    First and foremost, it most certainly is possible for a complaint of rape to be countered by a complaint of causing a person to engage in a sexual act without consent – if one cannot satisfactorily establish consent then one equally cannot determine who may have instigated a sexual act if each denies taking on that role and claims the other had sex with them without their consent, particularly where alcohol is involved. Alcohol may affect male performance but, again, does not preclude the possibility that a man could be incapable of giving consent, by common law standards, and yet still functional to the point of being capable of a sexual act – to put it a bit more explicitly it would a stretch for a man to make such a claim on the basis of having had sex in the missionary position, but if he claims that the woman went ‘cowgirl’ then it certainly physically possible for the situation to arise.

    That. however, is not the real point – the real point is that around a third of rape complaints fail before ever reaching court due to the complainant withdrawing their complaint, often because the complainant’s experience of the investigatory process is a negative one. In fact, as things stand, a man facing a rape complaint has a better chance of getting off before it reaches court than he has if it gets to court – close to 90% of complaints don’t result in a court case at present, while if it get to trial the odds of a conviction are about 50-50.

    Rape investigations are traumatic enough as things stand, hence the high attrition rate – but what would happen if a man who was accused of rape did counter the complaint with a complaint of their own? In such a situation, the police are duty bound to investigate the complaint, which does mean interviewing the woman under caution – there really is no way of sugar coating that situation.

    It’s not a matter of law other than in the sense of being hypothetically possible – what it is a matter of psychology. Faced with a rape allegation, a man has a 1 in 3 chance of it going nowhere near court due to the complainant backing out of the case = that’s as thing stand now. What are the odds of a complainant backing off if, after making their complaint, they’re then informed that a counter complaint has been lodge, after which they’re arrested, cautioned and interviewed by the police? Much higher than 1 in 3.

    As far as I’m aware this hasn’t happened yet, but you can rest assured that somewhere down the line it will and the chances are good, if not excellent, that when it does the person who pulls off such a stunt genuinely is guilty.

  • I think that you are conflating the issues of whether a) a woman has capacity to consent b) whether a man has reasonable belief in her capacity to consent. This second, mens rea requirement certainly appears to be higher than the common law test of “not caring one way or another” (paraphrasing Kimber) OR not having a genuine belief (Satnam and Kewel) – what was a subjective test is now an objective test. Even if the tests are in extension the same, we have at least moved forwards by not framing the offence in terms of recklessness because recklessness tends to be quite unstable, in that the definition changes relatively frequently, and is not necessarily consistent between (classes of) offences.

    The actual question of capacity is one of fact, and is one that is always going to be problematic, as I said before. Legislation is not going to change this – it is inherent in the crime.

    As to counter charges, firstly it was always open to a man to claim that he had been indecently assaulted in being forced to have sex without his consent (under s. 15 Sexual Offences Act 1956 – now replaced by the new Sexual Offences Act). Secondly, the Police would not have to arrest or charge the woman alleged to have committed the “rape” – they could quite reasonably wait until the outcome of the first trial to see if there is any substance in the allegation. The only reason for an early arrest would be where it appeared that the woman would be likely to abscond.

    Thus, I think that your objection is simply ephemeral – it could have happened before, but there are good reasons for it not to have happened previously nor hence, because the police are not mindless automata.

  • Taking the issue of whether explicit oral consent must be given: I think that’s just nonsensical. If there’s a problem with men not realising that they ought only to have sex with women who are actually consenting, then communicating a bright-line rule is a very sensible thing to do indeed. If it means that some women who are eager for sex but too drunk to communicate it can’t have sex because all men internalise the message of the campaign, then that’s probably a worthwhile outcome.

    In law, however, there is no suggestion that consent must be explicit or in any form – just that the man cannot be convicted if his belief in consent was reasonable. Such consent can be communicated without words; the difficult case will be where a man attempts to elicit the response of a partner in his belief willing, mistakes her acquiescence for an indication of consent, and proceeds to sexual intercourse when she is merely submitting out of fear or some other motive. I think the better view is that on the old law that ought to have lead to an acquittal, but now it is rather less clear whether a jury would believe his belief to be reasonable.

  • Finally, the definition of consent: It is left undefined by the Act, except that there are a few “conclusive presumptions” about when it is deemed not to exist, giving us a partial negative definition. Beyond, the Act appears not to have changed the definition of consent at all.

  • steve

    Part of the problem is the methods used to investigate sexual crimes the presumption of innocent untill proven guilty does not exist in my case such an abuse of police powers was investigated that all of the officers were repremanded for there actions, and the case dismissed. (I work in a therapy practice where clients make numerious alligations of all types, all of which were unfounded and in some cases the individuals were not even clients yet the police still attempt to use such things against the individual.