Consent the creation of a new set of

Consent
during sexual practices and intercourse is considered as a vital element when
determining whether a defendant is guilty of a sexual offence.1

The
significance of ascertaining whether consent or no consent was given is
reflected in the statistics offered by the Ministry of Justice, Office for
National Statistics and Home Office which found that approximately 85,000 women
are raped in England and Wales every year.2

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Therefore
the sexual offences act 2003 endeavoured to place consent on a statutory footing
for the first time by defining it alongside evidential and conclusive
presumptions under sections 74-76 of the act.3
The change in law was a conscious legislative effort both to provide an
understandable structure for jury deliberation on sexual consent as well as to
hold defendants to a higher level of responsibility in which to demonstrate
their knowledge that consent existed.4

Prior
to this, the law on consent was governed by case law and based primarily on
legislation from 1956. In fact, variances and inappropriate language that
subsequently produced discrimination dated as far back as the 19th
century and was even considered as violating human rights legislation.5
This was deemed as unsatisfactory by the home office and David Blunkett
suggested the language employed was ‘archaic, incoherent and discriminatory’.6

What
was concerning was the lack of statutory definition of consent highlighted in
the case of Olugboja 19827
whereby the jury had to make a decision when there only existed a vague idea of
what consent in comparison to submission meant due to lack of previous
scrutiny.  As a result it became apparent
that consent needed to be defined painstakingly and without ambiguity to allow
the judiciary to interpret the law accurately and to provide satisfactory
direction to jurors.8

It
essential, however, to address whether the sexual offences act 2003 has managed
to accomplish this successfully and it has been suggested that despite the new
structured framework to direct decision making, neither considerable lucidity
or improved protection has in fact been achieved by the inclusion of a
definition of consent within the act.9
Further, it has been argued that the act simply results in the creation of a
new set of flexible legal tests to offset its difficulties, and random legal
outcomes are derived due to its complex concepts and limited structure.10

The
Sexual Offences Act 2003 provides a definition of consent under section 74
which states “a person consents if he agrees by choice, and had the freedom and
capacity to make that choice.” It additionally provides, under section 75, a comprehensive
list of specific circumstances in which consent and reasonable belief in
consent will be alleged to be absent. Examples of such circumstances are when
violence is used or threatened or when the complainant is unconscious or
asleep. However, these presumptions can be rebutted by the defendant effectively
using evidence that justifies raising the complainant’s consent or his
reasonable belief which can be then analysed. 11

The
act also describes, under section 76, two circumstances in which the
presumption will be beyond question, specifically where the defendant has deliberately
deceived the complainant as to the nature or purpose of the act or has purposely
persuaded the complainant to consent by impersonating someone known to her.12

The
new act embodied the largest overhaul of sexual offences in over a century with
the aim to reinforce and revise the law while repealing most of the preceding
statute law.13
While it attempted to reflect changes in social attitudes, it additionally
sought to offer more protection to children and vulnerable adults.14
The legal tests, based on notions of freedom, capacity and reasonableness, were
a legislative endeavour to produce a clearer structure for jury reflection on
sexual consent and to provide well intentioned clarity with regards to sexual
relationships.15

However,
the reformation of English law in such a sensitive and debatable area of law,
is bound to attract criticism and as a result ambiguous terms as well as
restrictive content contained within section 75-76 has been highlighted as
areas of primary concern.16

While
the act may have desired to be in keeping with modern attitudes and beliefs within
sexual relationships, Amnesty International state that as a third of the
general public still believe a woman to be moderately or entirely responsible
for being raped suggests that the new definition of consent still  warrants further amendment and embellishment.17

The
requirement remains with the prosecution to prove absence of consent rather
than the defence to show that they had taken concerted steps to ascertain
consent. This is in stark contrast to the law regarding assault whereby the
victim is rarely asked if they agreed to be injured.18
Added to this, despite section 75 and section 76 of the act, the issue of
consent still relies on the mental state of the defendant, provoking the
necessary question: can the jury accurately interpret the mental state of the
defendant?19

While
the act insists that a person consents to sexual activity ‘if he agrees by
choice and has the freedom and capacity to make that choice’20,
these terms could be considered as ambiguous and lacking in explicit
definition.21

Further,
Temkin and Ashworth state that the way in which the act interprets consent
‘positively sprouts uncertainties’.22

Perhaps what is being suggested here is that choices
in life are hardly ever wholly free or voluntary leading to the suggestion that
concepts such as freedom of choice are comparative and minimalistic.
Additionally it appears from the definition in the act of consent that the law
equates complianc

1 Janet Loveless, Criminal Law, Text,
Cases and Materials (OUP 2008).

2  Home Office
and Ministry of Justice, ‘An overview of sexual offending  in England and Wales’ (Topical criminal
justice publications and crime statistics, January, 2013) https://www.gov.uk/government/statistics/an-overview-of-sexual-offending-in-england-and-wales Accessed 6 December 2014.

3
Jennifer Temkin, Rape
and the Legal Process (OUP 2006).

4
Ibid 106-107.

5
Janet Loveless, Criminal
Law, Text, Cases and Materials (OUP 2008).

6
Home
Office Review of Sex Offences, ‘Setting the Boundaries: Reforming the law on
sex offences’ (Volume 1, London: Home Office Communication
Directorate, 2000).

 

7 R v Olugboja 1981 3 All ER 443

8 J. McEwan, ‘Proving Consent in Sexual Cases:
Legislative Change and Cultural Evolution’ (2005) 9(1) International Journal of
Evidence and Proof 1 – 28.

9 Jennifer Temkin and
Barbara Krahe, Sexual Assault and the
Justice Gap: A Question of Attitude (Hart Publishing 2008).

10 Jennifer Temkin, Rape
and the Legal Process (OUP 2006).

11 J. Herring, ‘Human rights and rape: a reply to Hyman Gross’ (2007) Criminal Law Review, 228-231.

12 D. Selfe, ‘The meaning of consent within the Sexual Offences Act’ (2003)
178 Criminal Lawyer,4.

13 J, Elvin,’The Concept of Consent under the Sexual Offences Act’ (2003)
72 Journal of Criminal Law,519.

14
Jennifer Temkin and Barbara Krahe, Sexual Assault and the Justice Gap: A Question of Attitude (Hart
Publishing 2008).

15 S.J Lea, U
Lanvers, and S Shaw, ‘Attrition in rape cases; developing a profile and
identifying relevant factors’ (2003) British
Journal of Criminology, 43, 583-599.

16
Janet Loveless, Criminal
Law, Text, Cases and Materials (OUP 2008).

17 Amnesty International UK, ‘Violence against women’ http://www.amnesty.org.uk/violence-against-women#.VIRtC8mu8VQ Accessed 5 December 2014.

18
J, Elvin,’The
Concept of Consent under the Sexual Offences Act’ (2003) 72 Journal of Criminal Law,519.

19
J. Herring, ‘Human rights and rape: a reply to Hyman Gross’ (2007) Criminal Law Review,
228-231.

20 The Sexual Offences Act (2003) (c44).

21  Janet Loveless, Criminal Law, Text, Cases and Materials
(OUP 2008).

22 J.Temkin & A.Ashworth, ‘The Sexual Offences Act
2003: Rape, Sexual Assault and the Problems of Consent’ (2004) Criminal Law Review 328-346, at 336-7.

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