Clarity within the law on consent? An argument for clearer guidance
There is no clear rationale in reality to incorporate three separate sections of evidential presumptions (s75), conclusive presumptions (s76) and ‘consent in its general meaning’ (s74), when determining consent under the Sexual Offences Act 2003. Consent can be assessed against rape under s1, which carries a maximum life sentence, or under section 4. Some cases of deception under s76 closely correlate to s74 when determining the victim’s consent, demonstrating a less clear rationale for the two provisions. Similarly, some aspects of s75 closely correlate to s74, as some presumptions that involve pressure such as the victim being ‘unlawfully detained’ (s75(2)(c)), can equally arise to a case in consent in its general meaning under s74.
Part I: Defining consent
The requirement for consent under s1 for he offence of rape is included in both the actus reus (conduct element) and mens rea (mental element). S1 shows that consent must be established where the ‘victim does not consent to penetration’, nor does the ‘defendant reasonably believe that the victim consents’ (s1(1)(b) and (c)). The definition for consent is further qualified by the presumptions (s75 and s76) and with consent under its general meaning (s74). Therefore, all sections share the same objective in potentially applying to s1 (or s4), but ultimately requires different standards for the differing presumptions across various cases within the Sexual Offences Act. Consent under its general meaning, under s74, is defined by a person consenting ‘if he agrees by choice, and has the freedom and capacity to make that choice’.
Part II: Is there a clear rationale between conclusive presumptions and ‘consent in its general meaning’?
Firstly, there is a clear rationale for consent to be distinct from conclusive presumptions and ‘consent in its general meaning’, as recognising the different standards of consent are important for the facts at hand. From a practical perspective, the law aims to set each section apart to aid the understanding of the jury, following the judge’s directions. Consent under conclusive presumptions requires showing that the ‘defendant intentionally deceived the victim as to the nature or purpose of the relevant act’, or ‘induced the victim to consent to the relevant act by impersonating a person known personally to the complainant’. If these can be demonstrated then the offence of rape can be conclusively presumed, with no availability for rebuttal by the defendant. Deception as to nature aims to protect exploitation of victims, who would possibly not understand the meaning of consent, as seen in the pupil’s lack of understanding in R v Williams. Similarly, Tabassum was convicted under deception as to nature where the victims were unaware of the act involving sexual intercourse or gratification. Therefore, s76 is clearly differentiated in order for the law to recognise a stronger means of protection where individuals are taken advantage of, thus estopping defendants from bringing evidence in court.
However, it is arguable that consent in both sections interlink, representing an unclear rationale for the separate provisions. For example, R v Devonald  assessed consent under s76, representing deception as to purpose as the intention was sexual gratification, not revenge. However, in R v Jheeta  the false pretence of advising the victim as a policeman did not alter the victim’s intent for the defendant to receive sexual gratification. Thus, she was not deceived as to the ‘nature or purpose’. Instead, s74 applied as ‘the pressures imposed on her by the complicated and unpleasant scheme which he had fabricated’ (Lord Justice Judge), ultimately leading to the negation of consent. Therefore, if the facts fail to show deception under s 76, there hardly seems much purpose in separating the acts if s74 can be relied upon eventually as a base for consent. R v B  was similarly assessed under s76, but was alternatively awarded under s74. Elliot and de Than similarly concluded that ‘the concept of consent has, in reality, no single clear “ordinary meaning”’ Therefore, there is no clear rationale to differentiate between s74 and s76, as they both share common features of pressure and lack of ‘freedom’, thus both ultimately lead to the same conclusion.
Part III: Clear rationale between evidential and ‘consent in its general meaning’
The rationale for differentiating between evidential presumptions and ‘consent in its general meaning’ is less apparent than conclusive presumptions, as there is no distinction in theory since both sections are rebuttable. Evidential presumptions aim to show that the defendant did the ‘relevant act’ (s75(1)(a)) and ‘knew’ (s75(1)(c)) that the ‘circumstances in section (s75(2)) existed’. However, unlike conclusive presumptions, evidential presumptions enable defendants to adduce ‘sufficient evidence…to raise an issue as to whether he consented’. The evidence used in court is then ultimately left for the prosecution to show beyond reasonable doubt that the defendant did not reasonably believe that the victim consented.
More importantly, the rationale for the differentiation between the two provisions is less apparent, as s75(2)(c) states that consent can be evidently concluded where the complainant was ‘unlawfully detained at the time of the relevant act’. However, the kidnap in McFall , was ultimately assessed against consent under its general meaning using ‘freedom and capacity’, resulting in an inconsistent and unnecessary means to include two provisions. Similarly, cases involving ‘unconsciousness’ (s75(2)(d)), as was assessed in R v Ciccarelli, cannot be any different to lacking capacity. Sexual offences that involve unconsciousness, whether asleep or voluntarily intoxicated, seem to be covered under s75 and s74, even though the nature of the act can include practical difficulties as most victims would potentially not be aware of these offences. Due to the impractical nature of unconsciousness and voluntary intoxication, it is even more difficult for the jury to apply definitions of consent to two separate sections. For example, R v Bree was ultimately ‘an issue for the jury to decide’. However, the lack of proper guidance on how to address the issue of consent ultimately affected the verdict of Bree (Sir Igor Judge P).
In conclusion, it is submitted that there is no clear rationale as to why the law would separate some evidential presumptions away from consent in its general meaning, as simplifying the law could aid in a more efficient direction of the jury. Distinguishing conclusive presumptions (76) from consent under its general meaning (74) may protect victims from inexcusable deception. However, consent under its general meaning is always relied upon eventually in order to contribute towards a conviction under S1 of the Sexual Offences Act 2003.