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When consent isn't consent

[Image credit: Informed Consent

Date: 2021-08-13

When consent isn’t consent

An unusual case was dealt with at the Court of Appeal recently concerning offences of rape.

The victim, referred to as X, was the partner of Smith, who was the leader of a large-scale drugs conspiracy. Smith enjoyed watching X have sex with his friends; he was much older than X. She apparently consented to the sex with Ivor, George, Thomas and Mike, but the issue for the jury was whether that consent was genuine, if it was not genuine, whether the appellants reasonably believed that it was.

The Sexual Offences Act 2003 sets out the issue of consent and says that the offence is committed if the complainant does not consent or if the perpetrator does not reasonably believe that the complainant consents. A person consents if he or she agrees by choice and has the freedom and capacity to make that choice.

The appellants were found guilty of rape, so the jury must have been sure that the apparent consent was not genuine and also satisfied that the appellants did not have a reasonable belief that X was consenting. They were sentenced on the basis that they believed that she was consenting but that the belief was not reasonable. This led to sentences outside of the guidelines that, without further explanation, could look lenient for rape.

They appealed on the ground the judge should have found that there was no case to answer as there was no evidence that each did not have a reasonable belief that she was consenting.

The prosecution case was that each appellant knew Smith, and each was aware of his methods of getting his way in the drugs world. They knew there was a disparity of power in Smith’s relationship with X, and they were aware she consumed alcohol and drugs before having sex with each of them. None of them made any inquiry with X; one admitted overhearing a conversation between Smith and X where she said she wasn’t really consenting.

The appellants argued at trial and on appeal that taking the evidence at its highest, there was nothing capable of proving the absence of a reasonable belief in consent. The law does not require a defendant to inquire about consent even when the broad circumstances might be thought to put him on inquiry. The Court of Appeal held that the judge was right to leave the issue to the jury. The evidence that went to reasonable belief was made up of a mosaic of individual pieces from a wide range of witnesses. It required the jury to evaluate those pieces in the context of a broad picture to determine whether the prosecution had proved the absence of reasonable belief. The evidence was there for the jury to come to the conclusion that it did.

This case amply demonstrates that consent is not a simple issue of yes or no. Back in 2018, a survey found that many people were still unclear as to what rape was. A third of people thought it wasn’t usually rape if a woman was pressured into having sex, but there was no physical violence. A third of men thought that if a woman flirted on a date, it wouldn’t generally count as rape even if she didn’t explicitly consent to sex. 21% of women thought the same.

This is a complicated area of law; if you find yourself accused of a sexual offence, you need expert advice at an early stage. Please do not fall into the trap of thinking that you do not need a solicitor if you have done nothing wrong, or that if you do have one it will make you look guilty. Everyone has the right to free and independent advice at the police station; it is a right that you should use.

How can we help?

We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly. If you would like to discuss any aspect of your case, please contact Carys Parry on 01758 455 500 or office@strainandco.co.uk.

[Image credit: Informed Consent” by Kevin Krejci is licensed with CC BY 2.0 ]

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