Non-Fatal Offences

o   Would be unrealistic to create some kind of grid system which would enable the answer to these questions to be related to some prescribed level of alcohol consumption.

o   Patronizing interference with the right of autonomous adults to make personal decisions.

o   S74 sufficiently addresses the issue of consent in context of voluntary consumption of alcohol.

o   Problems do not arise from legal principles, they lie with the infinite circumstances of human behaviour.

Legally freedom to consent does not matter if it is conditional.

In 1991, Texas did not convict a man who had sex with a woman who threatened to kill her, but agreed to her demands he used a condom.

The statutory definition also refers to the capacity of the victim to choose. It is undefined itself but must relate to awareness, knowledge and understanding. Research shows intoxicated defendants tend to be held less responsible than their sober counterparts, whilst intoxicated complainants tend to be held more responsible.

a)      Any person was, at the time of the relevant act or immediately before it began, using violence against C or causing C to fear immediate violence (the defendant would then have to raise any evidence to rebut the presumption, for example consent to the violence).

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

c)      C was, and D was not, unlawfully detained

d)      C was asleep or otherwise unconscious

e)      Because of C’s physical disability, C would not have been able ... to communicate to the D whether C consented;

f)       Any person had administered to or caused to be taken by C, without C’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling C to be stupefied or overpowered. (e.g Drink spiking, also would no longer be voluntary intoxication)

·         “I don’t think people are that daft really, you know, that they have to be given a definitive list … did they really need it pointing out to them?” (B4)

·         “...judges find them very, very complicated. And really, making consent too complicated is sometimes not a good idea” (B3).

·         “judge circumvented the presumption … I was fortunate enough to be prosecuted by a very, very senior and experienced barrister, who decided to just take the best points of his case, rather than throw everything” (14).

·         “there is often evidence, even if it’s from the defendant himself, and the jury will latch on to that” (B10).

·         “...it really does very much come down to who the jury believe” (B12) (Carline and Gunby 2011; Gunby, Carline and Beynon, 2010).

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

(a)he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b)B does not consent to the penetration, and

(c)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 is liable, on conviction on indictment, to imprisonment for life.

R v Morgan [1976] 2 All ER 347 HL

o   Irrelevant if belief reasonable or not, as long as it is a genuine belief.

o   Subjectivist approach. The idea that it’s unfair to criminalise someone if it is an honest mistake.

For

o   Unfair to impose criminal liability on a person who has made an honest mistake.

o   Criminal liability should only occur if the offender is aware at the time they were acting wrongly.

Against

o   Violates a partner’s rights as he fails to give proper value to their existence as a human being.

o   Respect for autonomy requires an individual to take steps to ensure consent.

o   Concerns regarding low conviction rate. Too easy to assert honestly believed in consent

(Home Office 2002).

·         “One of the few coherent, simple directions” (B1).

·         “I think it has to be objective. I think it’s just a copout to make it subjective. Some of the …defendants I represent, you couldn’t make it subjective, because they would …they’d get away with anything” (B11).

·         “I think it requires positive actions by a defendant and it’s effectively saying, well, were you really paying attention to what this other person was doing? … I think that is quite important because what it is doing is saying that sex is to do with two individuals. And you can’t focus on one, the person who is making the complaint; you’ve got to focus on the other as well” (B12).

·         “I think that’s very often what jurors have sympathies for the man that, you know, when is he supposed to stop and say, you know, just before the act of penetration, may I please establish with you that we are still consenting?” (B11)

·         Actions considered to support a reasonable belief in consent include: flirting, evidence of attraction and being invited back to the bedroom. (B10 and 3).

·         “there was nothing in her behaviour demonstrative or implied that led me to believe that she was not consenting” (B11).

·         “how was she demonstrating it if she …didn’t say no, she didn’t shout, she didn’t try to get him off, she just lay there, according to her own evidence. Well, how it is supposed to know from that?” (B11)

The broad reference to all the circumstances are an invitation to the jury to scrutinise the complainant’s behaviour to determine whether there was anything about it which could have induced a reasonable belief in consent. The act contains no challenged to society’s norms and stereotypes about either the relationship between men and women or other sexual situations leaves open the possibility that these stereotypes will fo2rm the test for reasonableness

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

(a)he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else,

(b)the penetration is sexual,

(c)B does not consent to the penetration, 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 is liable, on conviction on indictment, to imprisonment for life.

Maximum punishment by life imprisonment, this replaces indecent assault. The mens rea for this is that the D intends to penetrate and does not reasonably believe that the victim consents. 

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

(a)he intentionally touches another person (B), (b)the touching is sexual, (c)B does not consent to the touching, 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 is liable—

(a)on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; (b)on conviction on indictment, to imprisonment for a term not exceeding 10 years.

Maximum punishable by 10 years. 

78“Sexual”

[F1For the purposes of this Part (except section 71), penetration, touching or any other activity is sexual if a reasonable person would consider that—

(a)whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or

(b)because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.]

This focuses on the act and not on the surrounding circumstances, if a reasonable person concludes that the behaviour might be sexual, whether it is sexual is then decided by looking at the Defendants motive and the surrounding circumstances. 

Intentionally causing someone to engage in sexual activity 

(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.