Before the enactment of the Sexual Offences Act, rape was believed to be perpetrated by men only and the law was not clear most especially in laying out what the society expected and what was considered sexual violence and coercion. The Home Office producing a White Paper, Protecting the Public whose aim was to enact new legislation that clearly sets out unacceptable behavior. The White Paper emphasized on the importance of having clearly set out laws on consent to prevent miscarriage of justice. The White Paper’s aim was to deviate from the definition of consent which meant lack of submission to a clear and unambiguous meaning that makes it easier for the judges to make decisions. The Home Office also stated that new legislation should clearly set out the reasonableness test to include all circumstances as opposed to the reasonable man test. All circumstances like the mental state of the defendant, the temperament and his educational background should be taken into consideration.
This research paper seeks to establish whether the aims of clarity and unambiguous relating to consent and reasonable belief in Consent have been achieved in the Sexual Offences Act and to what extent. The paper also lays out reforms that should be made to the provisions on consent and reasonable belief in consent to improve clarity and avoid ambiguity.
- How far do the provisions in the Sexual Offences Act 2003 relating to consent and reasonable belief in consent, which form part of the Act’s definition of rape achieve this objective?
Before the Sexual Offences Act of 2003 was enacted, there was no clear definition of consent, except that consent is differs from submission. The Sexual Offences Act was enacted to create clarity and unambiguity in this area. Consent is defined by s.74 which states that ‘a person consents if he agrees by choice, and has the freedom and capacity to make that choice.’ In addition to s.74, ss. 75 and 76 establishes two classes of situations which lead to the presumptions that A did not consent and B had such knowledge.
Section 75 states rebuttable presumptions. The situations covered by s. 75 are: A was unconscious or asleep; intent to commit violence or violence was used against A another individual just before the sexual act or during the act; A was held against will during the sexual act and B was not; A’s physical inability translated to inability to communicate his/her consent before or during the sexual act; A without his/her consent had been administered a substance capable of overpowering or stupefying A at the time of the sexual act. The rebuttable presumptions are debatable, when the Crown presents evidence against the defendant, the defendant can present rebuttable evidence that supports his position against the Crown.
Section 76 states two conclusive presumptions. The conclusive presumptions include: B intentionally forced A to agree to the relevant act by impersonating an individual to A personally; or B intentionally lied to A as to the purpose or nature of the said act. In situations where s. 76 applies, B concedes to the act, s/he has no defence.
The presumptions set out in ss. 75 and 76; the definition in s. 74 and the necessity of B’s belief in consent to be agreeable apply to all non-consent offences provided for in ss. 1 to 4. The non-consent offences include: sexual assault; rape; causing sexual activity without consent and sexual assault by penetration.
The Sexual Offences Act was enacted to provide clarity and avoid ambiguity. However, the words freedom and capacity as used in s. 74 are not defined in the Act and they promote ambiguity.  Lack of capacity means that one is a child or one has a mental disorder. Mentally disordered complainants who lack the free will to consent should lie within the offences in ss.30 to 41 which deal with persons with a psychiatric condition rather than the basic non-consent offences. Those who have physical inability to agree or are oblivious are protected by s. 75 presumptions.
ss. 75 and 76 are specific on the provisions for rebuttable presumptions and irrefutable presumptions respectively. Therefore, judges have deviated from those sections because of the variety of sexual offences and elements thereof so that they apply s. 74 which promotes flexibility. In the case of Jheeta, Baron J. held that s. 76 is limited to the ‘act’ to which it is said to apply and as such the consent issue should be dealt with by the provisions of s. 74. Further, the case of Jheeta solidified two points: in instances where s. 76 is applied, it is given strict interpretation which deliberately does away with the term ‘purpose’ and instead focuses on whether the deception goes to the essence of the act of intercourse or issues pertaining consent and deception are to be resolved under s. 74 if they can be.
The presumptions set out in s. 75 have rapidly fallen into disuse. The provisions do not give B a defence as they are rebuttable. In instances where there exists an evidential question concerning presumption situations, then the presumption cannot proceed before a jury.
The aims of clarity and unambiguity set out by the Setting the Boundaries and Protecting the Public proposals fail. The presumptions set out in ss. 75 and 76 contain procedural failures and hence create ambiguity rather than achieving the objective of clarity which they were meant to achieve. Further, the words freedom and capacity as stated in s. 74 have not been defined in the Act and they are provisions which provide for mental disorders and lack of capacity. Lately, the courts have been reluctant to state clear guidance on what constitutes the statutory definition of consent. Courts have opted for a “common sense approach” to determine whether one consented.This flexibility approach may be comprehensible given the variety of scenarios. However, the provisions of consent do not meet the aims they were required to meet.
- How should consent and reasonable belief in consent be reformed, it at all, and why?
Consent and reasonable belief should be reformed. The list in s. 75 which states rebuttable presumptions and s. 76 which states conclusive presumptions are pre-empt all possible situations as well as over describe situations. One of the goals of the Setting the Boundaries proposal was to set out an act that clearly describes consent and to create scenarios that are flexible enough so that common law can develop as new issues arise every time. So, ss. 76 and 75 should be amended to include new arising situations and improve flexibility of application of laws.
Secondly, the broadness of s. 74 has had both advantages and disadvantages. One advantage is that judges can rely on it when dealing with difficult factual scenarios. Also, in instances where A’s interests have suffered, due to judges’ inability to rely on the presumptions, judges have been able to rely on s. 74. However, there needs to be a clearly set out list of presumptions to make it easier for judges and juries to make decisions. The list of presumptions should accommodate new scenarios and new aspects.
One way of solving the problem of is by mandatory judicial direction to aid judges and juries in the construction of s. 74’s unclear terms and allow Parliament’s views on circumstances where consent is improbable. Australia has tried out this method and it proved successful. For example, judicial direction has evolved sex cases like tackling stereotypes. As a result of judicial direction, stereotypes are challenged about sexual offending, its victims and perpetrators. The judicial direction has provided help to juries which is stipulated in Setting the Boundaries.
Sections 75 and 76 should be replaced and repealed by mandatory judicial direction which could make it possible for judges and juries to use their direct line of communication to litigate on questions and issues pertaining consent. The guidance can focus on the current issues in ss. 75 and 76 followed by elimination of the ‘purpose’ word in s.76. The direction should provide guidance to the jury on how to establish consent from a particular set of facts and circumstances. The direction provided should be written and oral so as well to prevent misinterpretation by the jury. If proper direction is supplied to the jury, it will enable the jury by encouraging all pertinent evidence to provide to the jury hence reaching a proper verdict.
The non-consent offences and s.74 should be updated to accommodate deceptions which do not violate consent. The current section and non-consent offences over-criminalize or under-convict guilty perpetrators. Updating the sections will improve clarity and avoid ambiguity.
Another reform that can be done to the Sexual Offences Act pertaining consent is the provision pertaining to B’s mind state. When B reasonably believes that A was consenting, B is saved. However, a true but unreasonable belief in consent will not relief B. Reasonableness is resolute by taking into consideration all factors and circumstances, such as reasonable actions taken by the defendant to confirm A’s consent. All circumstances that should be taken into consideration include: the defendant’s educational background, his/her temperament, his/her general conduct in society, mental disorders if any, learning disability and any other factors that may be considered relevant. Instead of taking into account the reasonable man test, the court should consider all circumstances. A case example is that of R v. Whittawhereby thedefendant was drunk and he made a mistake by think the mother of the girl was the girl. The defendant digitally penetrated the mother. When he was been adjudged in a court of law pertaining his guilt, his intoxication was not taken into consideration. The Court of Appeal applied the reasonable man (a sober man) test by stating that a reasonable man in similar circumstances would not have touched or sexually abused another person. All circumstances should include the state of mind of the defendant while performing the crime.
Lastly, the Sexual Offences Act can be reformed to include detailed rules of procedure of how evidence should be presented before the court, and ways in which rape cases are perceived and adjudicated upon. The Sexual Offences Act can include new provisions on sexuality. In the recent past, there have been developments on sexuality with more people coming out in the open to state that they are gay, lesbians, bisexuals etc. The Sexual Offences Act provisions on consent can be expanded to include consent for homosexuals. The premises for conditional consent should also be clearly set out.
In conclusion, the Sexual Offences Act of 2003 has made many changes pertaining consent compared to the Sexual Offences Act of 1956. The Act defines consent and sets out rebuttable and conclusive presumptions. However s. 74 is broad and some words like capacity and freedom have not been clearly defined and ss. 75 and 76 are narrow. This situation can be amended by reformulation of the rebuttable and conclusive presumptions through judicial direction and enabling the judges and juries to take into account all material facts, reasonable evidence and circumstances. Parliament should take a brave decision of doing away with the presumptions and rely on judges, lawyers and juries to come up with new and detailed law on consent.
 J. Temkin and A. Ashworth, The Sexual Offences Act 2003 (1) Rape, Sexual Assaults and the Problems of Consent  Crim L.R 328 at p336
 R v. A.(G)  Cr. App. R. 5
 C. Sjolin, Ten Years on- Consent under the Sexual Offences Act 2003
 R v. Jheeta  EWCA Crim 1699,  2 Cr. App. R. 34
 Assange v Sweden  EWHC 2849 (Admin); (2011) 108 (44) L.S.G 17
 Supra n 3
 The Queen v McNally  2 Cr. App R 28
 Section 2.11 and Recommendation 7 of Setting the Boundaries
 Crown Court Bench Book, at p3
  1 Cr. App. R (s) 122.
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