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Criminal Law
where there is a duty of care, as in R v forced sexual intercourse against a person
Lowe (1973). without consent.
It need not be directed at the victim, as in R It may be carried out by physical force,
v Larkin (1942). under threat or manipulation, by
It need not be directed against a person, as impersonation, or with a person who is
in R v Goodfellow (1986). incapable of giving valid consent.
If there is no unlawful act, there can be no
conviction for constructive manslaughter, Sexual Offences Act 2003 (SOA)
as in R v Lamb (1967). Rape – S1 provides that a person commits
All elements of the unlawful act must be the offence of rape if he intentionally
present, otherwise gross negligence penetrates the vagina, anus or mouth of
manslaughter may be charged. another person with his penis without
consent or without reasonable belief in
Dangerous Act consent.
For the purposes of the law of Assault by penetration – S2 provides that
manslaughter, it is defined by reference to a person commits the offence of assault by
what all sober and reasonable people would penetration if he intentionally penetrates
recognise was dangerous towards persons the vagina, anus or mouth of another
who were alive when the danger manifests person with his penis without consent or
itself, as in A-G’s Reference No 3 of 1994 without reasonable belief in consent.
(1997). Sexual assault – S3 provides that a person
This definition comes from R v Church commits the offence of sexual assault if he
(1965) where the court held that the intentionally touches another person where
unlawful act must be such as all sober and the touching is sexual and without consent
reasonable people would inevitably or without reasonable belief in consent.
recognise must subject the other person to, Causing a person to engage in sexual
at least, the risk of some harm resulting activity without consent – S4 provides
therefrom, albeit not serious harm. that commits an offence if he intentionally
In R v Carey (2006), the court clarified that causes another person to engage in an
not every unlawful act that kills will lead to activity where the activity is sexual and
a conviction for manslaughter; an unlawful without consent or without reasonable
act that kills will only lead to a conviction belief in consent.
for manslaughter if it is itself dangerous.
Actus Reus of Rape
Causing Death There must be non-consensual penetration
There must be a causal connection between of the mouth, anus or vagina of a person by
the unlawful act and the death. a man’s penis.
The dangerous act must cause death which Penetration with objects other than a man’s
would not have occurred but for the act. penis is a different sexual offence, i.e.
For example, a driver who fails to stop his assault by penetration.
car at a red traffic light hits someone and If the complainant is made to penetrate
causes death. another, the person who makes it happen
There is no intent to kill, so it would be may be prosecuted as causing a person to
treated as involuntary manslaughter rather engage in sexual activity without consent.
than murder. A man who continues to have intercourse
His responsibility for causing death is after consent is withdrawn commits rape, as
constructed from the fault in committing in Kaitamaki v The Queen (1985).
what might have been a minor criminal act.
Difficulty in Proving Rape
11. Rape It usually takes place in private without
independent evidence.
Rape The standard of proof is beyond reasonable
It is a type of sexual assault involving doubt.
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Criminal Law
Rules of procedure and evidence are Touching of clothing might be sexual as in
inflexible and insensitive. the case of R v H (2005).
The complainant needs to defend against
allegations of promiscuity and loose Reasonable Belief in Consent
morality. Before making any sexual advances, a
person has the responsibility to ensure that
Consent the other party consents to the sexual
Under S74 SOA, a person consents if he activity at the time in question.
agrees by choice and has the freedom and The test of reasonable belief contains both
capacity to make that choice. subjective and objective elements.
The freedom refers to whether the The subjective part concerns whether the
complainant could make the choice freely, defendant genuinely believe the
and was not constrained in any way. complainant consented.
The capacity refers to whether the The objective part requires the jury to
complainant have the mental ability (i.e. decide if his belief was reasonable.
age and understanding) to make a choice. Therefore, the defendant’s honest belief in
Consent can be withdrawn at any time consent alone is not enough because the
during sexual activity and each time consent must also be considered reasonable
activity occurs. by a reasonable person.
Consent once does not mean that the S1–S4 SOA provides that to determine the
complainant consents to any future sex, as reasonableness of belief in consent, the jury
in R v Harris (2009). should take into account all the
The defendant will escape liability if the circumstances including any steps the
complainant actually consented or he had defendant took to ascertain whether the
reasonable belief in consent. complainant consented.
A complainant telling a suspect she was
Definition of ‘Sexual’ under S78 SOA having a relationship with another man did
Penetration, touching or any other activity not provide the suspect with a reasonable
is considered sexual in two situations. basis for belief that she was consenting to
Situation 78(a) – if a reasonable person sex with him, as in R v Winter (2008).
would consider that whatever its The previous sexual history of the
circumstances or any person’s purpose in complainant with third parties is irrelevant
relation to it, it is because of its nature because consent is to a person, not to a set
sexual. of circumstances, and consent must be
Situation 78(b) – if a reasonable person given afresh on each occasion of sexual
would consider that because of its nature it activity, as in R v A (2001).
may be sexual and because of its Previous sexual association between the
circumstances or the purpose of any person complainant and the accused is potentially
in relation to it (or both) it is sexual. relevant to the issue of demonstrating
In deciding whether an activity is sexual, consent, and hence suggesting a propensity
the court should first consider the nature of to consent, as also in R v A (2001).
the activity.
If the activity is by its nature sexual, e.g. Ways of Consent
sexual intercourse or masturbation, then it Consent could range from actual desire,
is sexual for the purposes of the legislation. reluctant acquiescence, and mere
In deciding where the nature of the activity submission.
may or may not be sexual, the court should Actual desire is a clear consent, but
consider the circumstances or purpose (or reluctant acquiescence and mere
both) of the defendant in deciding whether submission are problematic.
it is sexual. Every consent involves a submission, but it
Where the nature of the act cannot be does not follow that a mere submission
sexual, it is not made sexual by a person involves consent.
having a secret fetish. Reluctant acquiescence along with along
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Criminal Law
with a more positive attitude amounts to For example, if the complainant agrees to
valid consent. have sex with a particular person, but she
Mere submission along with a more ends up having sex with another person,
negative attitude is not a valid consent, as this deception as to identity will vitiate
in R v Olugboja (1982). consent.
Another example is that if the complainant
Conditional Consent only agrees to have virginal sex, but she
It is not a true consent if the condition is ends up having anal sex, this deception as
not fulfilled. to the nature of the act is enough to vitiate
If consent is conditional on the use of the consent.
condom during intercourse, and the Ostensible consent can be vitiated by
condition is deliberately disregarded, that deceptions that are closely connected to the
amounts to rape, as in Assange v Swedish nature or purpose of sexual intercourse, as
Prosecution Authority (2012). in R v Lawrance (Jason) (2020).
There is no consent if the sexual act is The manner of communication of the
performed in a way that breaks a condition deception is irrelevant, as the fundamental
agreed previously, as in R v DPP (2014). issue is whether the deception is
sufficiently closely connected to the
Communicating Consent performance of the sexual act, as also in R
There is no requirement for the v Lawrance (Jason) (2020).
complainant to communicate her lack of
consent to the offender. Precondition
Compliance can mask the lack of true If there is a precondition for the consent
consent, especially for vulnerable people, and the precondition is not met, it is still
as in R v Malone (1998). consent although a different crime may be
charged.
Determining Consent In R v Linekar (1995), the court held that
The jury should be directed that consent, or although consent was based on payment,
the absence of it, is to be given its ordinary refusing to do so after intercourse was only
meaning. fraud, not rape.
The jury need to apply their combined good
sense, experience and knowledge of human Intoxication
nature and modern behaviour to all the It can affect a person’s capacity to consent
relevant facts. and freedom of choice.
Issues of consent and capacity to consent to If the alcohol renders the complainant
intercourse in cases of alleged rape should unconscious or prevents her from knowing
normally be left to the jury to determine, as what is happening, then she does not
in R v Hysa (2007). consent due to lack of capacity.
If the effect of the alcohol prevents the
Deception complainant from communicating her lack
The defendant obtains consent to have sex of consent, she does not consent due to lack
with the complainant by deception. of free choice.
Consent is not vitiated simply because the If the effect of the alcohol is to cause the
complainant would not have agreed if she complainant to engage in sexual activity
had known all the relevant facts. which she would not have done if sober,
For example, when a person agrees to pay she does not consent, as in R v Bree (2007).
the complainant for her consent to have
sex, but he refuses to pay after intercourse, Delusion Belief
this does not vitiate her consent although A delusional belief in consent is irrational
this is a crime of fraud. and thus unreasonable, so it is not a true
Also, deception will not negate consent consent, as in B v R (2013).
except for deception as to identity and as to
the nature and purpose of the act
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Criminal Law
Conclusive Presumption under S76 SOA The prosecution must prove beyond
76(1) – the conclusive presumption is that reasonable doubt that the circumstances
the complainant did not consent, and the existed.
defendant did not believe that the
complainant consented. Absence of Consent
Any consent was vitiated by deception as to S74 SOA: lack of consent – if the
identity of the actor, or the nature and complainant did not agree by choice nor
purpose of the act. did she have the freedom and capacity to
The defendant is still guilty of rape if he make that choice.
intentionally created a situation deceiving S76 SOA: conclusive presumption – the
or forcing the complainant to consent. complainant is conclusively presumed that
76(2)(a) – the defendant is guilty of rape if she did not consent if her consent was
what the complainant was consenting to obtained by deception as to the nature and
and what she thought she was consenting to purpose of the act, and as to the identity of
were completely different in the nature and the person she gave her consent to.
purpose of the act. S75 SOA: evidential presumption – the
76(2)(b) – the defendant is guilty of rape if complainant is evidentially presumed that
he intentionally induced the complainant to she did not consent if her consent was
consent to the relevant act by given due to violence, fear of violence,
impersonating a person known personally unlawful detention, her physical disability,
to the complainant. or when she was asleep or unconscious, or
Rape will be discharged if this presumption administered a substance.
is rebutted, as in R v Williams (1923).
Attempted Rape
Evidential Presumption under S75 SOA It is also a strict liability crime in which a
S75(1) – the evidential presumption is that person attempts to rape another person but
the complainant is to be taken not to have without success (i.e. without penetration).
consented to the relevant act unless
sufficient evidence is adduced to raise an Age of Consent
issue as to whether he consented, and the It is the age at which a person is considered
defendant is to be taken not to have legally competent to consent to sexual acts.
reasonably believed that the complainant The age of consent in England and Wales,
consented unless sufficient evidence is Scotland, and Northern Ireland is 16.
adduced to raise an issue as to whether he A person who engages in sexual activity
reasonably believed it. with a person below 16 is unable to claim
The complainant was presumed to refuse that the sexual activity was consensual.
consent under six circumstances. Such sexual activity may be considered
75(2)(a) – a person used violence against child sexual abuse or statutory rape.
the complainant or caused her to have such
fear. Statutory Rape
75(2)(b) – a person caused the complainant A person under the age of consent does not
to fear that violence would be used against have the capacity to consent to sexual
another person. intercourse.
75(2)(c) – the complainant was unlawfully Whether or not the child consented to
detained. sexual intercourse is irrelevant.
75(2)(d) – the complainant was asleep or It is a strict liability crime, so mens rea is
unconscious. not required for conviction.
75(2)(e) – the complainant could not The SOA further differentiates between
indicate whether she consented due to sexual contact with children under 13 and
physical disability. that with those at least 13 but under 16.
75(2)(f) – the complainant was stupefied or Having sex with a child under 13 is termed
overpowered by any substance rape of a child under 13, regardless of
administered by the defendant. whether the child consented.
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