Consent in sexual offences Intro - SOA 2003, established contemporary framework of sexual offences - Attempt to reshape received widespread criticism of its interpretation of consent This essay will argue: (1) The approach taken in the SOA toward consent does not sufficiently protect victims of sexual offences (2) The law on deception is particularly incoherent, calling for reform and an independent criminalisation framework Agreement by choice / freedom / capacity - s.74 1. Agreement by choice - Failure to resist does not constitute agreement: MC v Bulgaria - Intentionally doing what is expressly prohibited: Assange: V insisted use of condom, vitiates agreement by choice - Integral principle of agreement is upheld Intoxication - Does not automatically vitiate consent - General rule is sensible: inflexible to assume one cannot consent as a starting point - But if one is so intoxicated they cannot make decisions, no agreement by choice - Bree: C was so intoxicated, didn't recall sex - Appeared willing / conscious, no reason to suspect no consent - Subjective to each individual, paradoxical to suggest a broad common sense approach is sufficient - Loveless (2008): should not have one objective statement about intoxicated consent, need "factors to be considered by judges when directing rape juries" - BBC 2005: 35% rape reports are alcohol-related, relativises seriousness of intoxicated consent - 30% believe intoxicated woman is partly blameworthy: societal misunderstanding of consent altogether, need subjective considerations - Tempkin and Ashworth: women "take their chances" in the legal process - Wallerstein (2004): low conviction rates can only be improved by legislative intervention - SOA should reconsider intoxicated consent to encourage more subjective interpretation depending on V's experiences Sleeping - s.75: evidential presumption that if V is unconscious, jury should confer non-consent at first stage - Strong, coherent mechanism to protect victims - Example of when broad rules are appropriate - Sometimes recognises unconscious consent as valid - Ciccarrelli: couples in established relationships understand what is sexually appropriate, thus can consent while unconscious - Individuals can't withdraw consent until conscious - If someone cannot object, cannot rely on prior consent - Rv J.A., Canadian SC: "an individual must be conscious throughout ... to provide the requisite consent" - Preferred approach: UK courts should vitiate unconscious consent to protect victims, ensuring they can withdraw consent Freedom
- When V agrees to sexual activity but feel they have no real choice - Olugboja: men took girls to secluded area, raped them, V was under impression she would not be taken home, agreed to sex - Distinction between "reluctant acquiescence" and "mere submission" left to jury - Gardner (1996): Victim-sensitive approach, committed to protecting autonomy. Expense of predictability Deceptions - s.76 - law on gaining consent by deception is incoherent, undermines fair labelling - s.76(2)(a): D intentionally deceives C as to the nature / purpose of the relevant act - If C understands essence of act, consent is valid - Williams: portrayed sex as medical method to improve singing - Assange: does not vitiate consent under