Consent and Reasonable Belief in Protecting Individual Autonomy: Analytical Essay

One’s individual sexual autonomy is impaired where consent is undermined. However, the meaning of consent has been debated and continues to be. Prior to the Sexual Offences Act 2003 (SOA), there was no codified definition of consent and in line with this, the courts left the definition to the common understanding of the jury. Glanville Williams criticized this, highlighting the “deplorable tendency of the criminal courts to leave important questions of legal policy to the jury.” The jury were being asked to define consent and therefore the law which is problematic. Setting the Boundaries (2000) rejected the Olugboja approach which was to only direct the jury to consider the difference between consent and submission. Following this, the Government’s White Paper Protecting the Public (2002) aimed to “make statutory provision that is clear and unambiguous.” The SOA set out four offences, all requiring consent and reasonable belief in consent, with a view to improve high attrition rates for rape. Whether this protects individual autonomy adequately is debatable.

The general definition of consent (s.74) is satisfied where a person agrees by choice and has the freedom and capacity to make that choice. Arguably, s.74 does not provide adequate protection for individual autonomy because “freedom” and “capacity” are not defined. This leaves the interpretation to the jury who will likely have preconceptions of such words. “Freedom” is a loose word and can doubtfully be useful in defining consent. For example, Simpson has suggested, “the word implies a counter-force against which the victim (V) may be acting freely”. According to her, “where this takes the form of physical pressure, it can be desirable for a jury to address freedom by referring to proportionality and therefore, the greater the pressure, the less freedom V will have to make a choice in sexual interactions”. Using this view, a relationship exists between consent and submission. In R v Kirk, the Court of Appeal (CA) took the view that the V “submitted” rather than consented as she had no other choice. It was either sex or hunger. Though freedom was not undermined by physical pressure here, it was impaired by circumstances, therefore limiting protection of individual autonomy. However, some codified guidance is provided in the form of a test for capacity (set out in C) and two factors that must be considered for freedom. Nonetheless, the words within the factors for freedom, such as deception and lack of examples of “circumstances”, discretion remains.

On the other hand, s.74 provides adequate protection for individual autonomy as the construction “agrees by choice” is a clear indication that consent should be viewed as a positive sign of willingness, as opposed to the absence of objection. Reflecting this, Watson held that submission is not consent. In spite of this, the academic Paul Roberts has said that “freedom” and “choice” raise philosophical issues of complexity which is unfitting to the needs of criminal justice which requires the judiciary to depend on pre-Act case law that is presumably outdated, therefore not protecting the individual autonomy of V as previous case law may not follow current law. Although, the wording of s.74 mirrors a more modern approach to consent as opposed to how it was previously interpreted which may indicate changing societal views on “choice” in sexual interaction.

The rebuttable presumption against consent (s.75) is used where the facts do not come within the conclusive presumptions (s.76). If they come within the rebuttable presumptions, the jury will find lack of consent unless D provides evidence to rebut the presumption. R v Ciccarelli held that rebuttable presumptions “identify situations in which a complainant will be vulnerable or disadvantaged, and, as a matter of reality, unlikely to be consenting.” S.75 presumes the absence of consent and reasonable belief in consent in situations of (a) violence or fear of violence against V or; (b) a third party; (c) where V is unlawful detained; (d) V is asleep or unconscious; (e) V’s physical disabilities affect communication and; (f) V has been administered a substance capable of overpowering V without V’s knowledge.

S.75 does not provide adequate protection for individual autonomy because the existence of it allows the defendant (D) to be excused but if D respected V’s sexual autonomy, they would have been clear on V’s consent, the issue of consent therefore not arising. Despite this, it is difficult to rebut a presumption as D will have to “adduce sufficient evidence” which is “beyond the fanciful or speculative”. Oral testimonies from D is unlikely to be enough as in Ciccarelli. For example, in Dagnall, it was arduous to prove there was no threat of violence where D dragged V from the road threatening to rape her. Aside from this, this area lacks definition. It is unclear what amounts to “immediate” or “violence”. There may be a temptation of the jury to draw definitions from the case law surrounding non-fatal offences, though this may not be the intention of Parliament and could be detrimental to V’s individual autonomy in that it could undermine V’s claims of a potential sexual offence.

To the contrary, s.75 can be seen to provide adequate protection for individual autonomy because it is well drafted. There are clear instructions within this area, such as when the presumptions may be rebutted, how it is to be rebutted and by who. This protects autonomy as it is harder for D to rebut a presumption without relevant grounds. However, this may also be disadvantageous as the exhaustive list leaves no scope for further situations to be added through common law, though this was the intention of the Report (Temkin and Ashworth). Therefore, Vs individual autonomy can be seen as impaired as it is limited to the list. On the other hand, Government has claimed that “it will provide juries with a clear framework within which to make fair and just decisions and it should serve as a clear statement to the public more widely.”

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Voluntary intoxication can have implications on V’s capacity and D’s reasonable belief of consent. The rules surrounding D’s voluntary intoxication may be seen as protecting individual autonomy as “a belief in consent which was induced largely by drink would be most unlikely to be reasonable” (Heard). Instead, a judge will likely direct the jury to consider reasonableness as if D had been sober. Where voluntary intoxication affect’s V’s capacity, Bree is the legal authority. It suggests the phrase “a drunken consent is still consent” (Sir Igor Judge P) encapsulates the legal position precisely. Damian Warburton interpreted this to apply to both voluntary and involuntary intoxication which may be dangerous as the law (s.61) does not allow intoxication of others without consent in order to secure engagement in sexual interaction. Where the issue of voluntary intoxication arises, the CA continues to encourage judges to leave it to the jury. This may be harmful to the individual’s autonomy as can be illustrated by research carried out by Finch and Munro which showed, when the CA’s advice was followed, the jury acknowledged D had some responsibility but many regarded V as being responsible for the sexual offence. Academics have agreed sufficient guidance must be given to rid preconceptions of jurors. Although V may have some protection under s.74, leaving the issue of voluntary intoxication to the jury is problematic in terms of the individual autonomy of V and potentially D.

Under s.76, where it is proven that the factual circumstances of impersonation or deception of V as to the “nature or purpose” of the act to secure consent was used by D, there is an irrebuttable presumption that V did not consent, and D had no reasonable belief. Arguably, s.76 does not provide adequate protection of V’s autonomy as impersonation limited to those known personally by V. This is clearly to avoid where D impersonates a celebrity, etc. However, exactly who is known ‘personally’ to V may be difficult to discern. This can be seen to undermine V’s sexual autonomy. However, Temkin and Ashworth identify that s.76 extends the old law beyond impersonation of partners. Despite this, they acknowledge that the wording leaves it open to D to argue that consent was not due to impersonation but irrespective of it. Although, if V cannot find protection in s.76, they may be able to do so under s.74.

S.76 is likely to undermine the individual autonomy of D as the conclusive presumptions apply to all the relevant offences. Simpson argues this is objectionably wide and therefore possibly incompatible with Article 6 of the European Convention on Human Rights as they presume guilt irrefutably. This raises issues of ethics, though not much has been done to protect the D from wrongful convictions under s.76.

Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps D has taken to ascertain whether V consented. D will be found not to reasonably believe V consented if they knew V did not consent, they gave no thought to whether V consented, or they believed V consented, but the belief was unreasonable. The approach in Morgan is commended by subjectivists as it emphasizes judging people on facts as they believed them to be. However, in the Government’s view, the approach leads Vs to avoid reporting incidents as they feel they will not be given justice. The Morgan test clearly did not provide protection of V’s sexual autonomy but did so for D. However, the new inclusion of reasonableness may also limit protection of V’s sexual autonomy as “all the circumstances” is broad. Temkin and Ashworth recognise that this may be “an invitation to the jury to scrutinize V’s behaviour to determine whether there is anything about it which could have induced a reasonable belief in consent.” This is likely to deter Vs from coming forward, narrowing the protection of individual autonomy. However, the addition of reasonableness does add potential for justice in comparison to the previous law.

The Home Office anticipated difficulties within these sections and suggested in reference to s.74, depending on the facts of a case, juries should be told not to assume V freely agreed just because V did not say or do anything or was not physically injured. However, the Government rejected this advised reform. Herring has also suggested that the broad language of s.74 should accommodate for all deceptions. This would allow the law to accommodate “lesser deceptions” such as lying about being rich. Simpson has expressed this approach would offer protection of sexual autonomy, but Gross argues the law needs to put strict restrictions on the types of mistake that will negate consent. Given the decision in McNally that “some deception (such as…in relation to wealth) will obviously not be sufficient to vitiate consent”, it is unlikely the judiciary will favour this reform. Reform may also be considered in changing the attitudes about rape and shifting blame from V onto D, to protect the sexual autonomy of V, especially in cases of voluntary intoxication. The Education Secretary (Nicky Morgan) has announced that the Government has commissioned materials to teach children about rape, including issues of intoxication with clear statements that consuming alcohol is not an excuse to assume consent.

The current state of the law on consent in sexual offences has been significantly improved since pre-Act law, in terms of protecting V’s sexual autonomy. However, it still leaves much interpretation to the jury, especially on factors that may be detrimental to V’s autonomy such as voluntary intoxication. It can be harmful as decisions in such cases can insinuate V as blameworthy. Many words used in the Act are also ambiguous, allowing for preconceptions of words such as “deception” and “freedom” to be allowed which may cause inconsistencies in the law, further impairing the individual’s autonomy. Though there are many ways in which the SOA protects sexual autonomy, it can be argued that it also harms it. Many reforms have been suggested by academics and the Law Commission, yet the Government has only introduced educational material for children. This is a step in the right direction but there is little as to what is being done to protect those in the current society.