Essay: Sexual offenses and the law on consent

Introduction
The law that governs sexual offenses and consent that is to say criminal acts such as rape and indecent assault (sexual assault) is under the Sexual Offenses Act 2003 which was enacted in 2004. The purpose of this Act was to bring a genuine form of reform to the laws that governed crimes of a sexual nature with the incentive of reflecting the social mindset of the people and in turn strengthen the protection of younger people (children) or other vulnerable people through upgrading the law on rape.
Consent and the Sexual Offenses Act 2003 (with relevant cases)
The law on sexual offenses was further amended by adding other offenses such as offenses against children as well as assault by penetration . In addition to this, reviews were made on the penalties and sentences of this offenses in order to amend and strengthen them if need be in order to send out a message that offenses such as those will not be dealt with lightly. The introduction of the Sexual Offenses Act 2003 was to be the new beginning of safer laws and protection against sexual crimes but due to variable within making of this law meant that it was not as certain as it would seem. The issue of consent and its definition or its interpretation through the law makes it difficult to handle sexual oriented crimes such as rape and would even say that the law governing consent and sexual offenses is still a long way off from being impeccable.
Section 74 of the Sexual Offenses Act 2003 states the legal definition of consent which reads, “… a person consents if he agrees by choice, and has the freedom and capacity to make that choice.” This is what the courts use as a guide when presiding over sexual offenses but even with this definition of consent, people are still oblivious to the meaning of consent and so it creates a problem when asked whether they made the choice (consented) to any activity of a sexual nature; that being said, consent is a really sensitive issue to deal with. But even with that, there are cases that are more straight forward where the sexual act done can arise to criminal liability irrespective of whether consent was given or not for instance kissing between individuals who are underage for example 15 year olds even if they consent, sex with an adult relative which comes with a two year prison sentence if found guilty . The Sexual Offenses Act 2003 also revised the old law regarding people under the age of 16 unable to give valid consent which was also under the Sexual Offenses Act 1956. The new reformed Act decided to cap the age to 13 years of age in order to safe guard children from the preying hands of pedophiles. This does not mean that there is lee way for children above 16 to give consent as the Act still strongly restricts it.
The Sexual Offenses Act 2003 contains provisions vital in explaining consent which include the definition of consent, the reasonable belief in consent and the defendant’s belief in consent as well evidential presumptions on consent. These provisions relate to sections 1-4 which govern the offenses of rape, assault by penetration, causing a person to engage in sexual activity and sexual assault. The issue of consent and its definition were not greatly looked at in the old Act of 1956 as it merely looked at as ordinary and was rarely brought up as an important factor when deciding cases. The case of Olugboja (1982) QB 320 was one case where consent was a problematic issue. In this case , two girls were being taken advantage of by a group of men where one girl was raped and one allowed the sex to happen. The court held that there was an issue of consent to be considered in terms of figuring out whether the claimant consented and that’s only in the ordinary meaning of the word consent. To scrutinize this though would be to subject the meaning of consent to any meaning from willingness and desire to do something or the reluctant acquiescence on the other hand. This matter should never be left to the jury without the proper direction and guidance of a judge on the meaning and parameters of consent.
The definition of Consent in Section 74 of the Sexual Offenses Act 2003 does not solve the issue of consent as it is still a complicated area to deal with in law. The case of Barbour v HMA 1982 SCCR 195 is another case which points out the grey area of consent. In this case, Lord Stewart in concluding the case pointed out that the lady who hadn’t resisted intercourse with the defendant because she was scared of him was asked during cross examination whether she had consented or not and she responded by stating, “… it depends what you mean by consent.” This means that the definition of consent is not straight forward and so has to be properly scrutinized before decisions are reached. Looking at his properly, we can easily see how the incongruity on the issue of consent can be exploited and used to the advantage of the defense in rape case and it goes the same direction for the juries in terms of the juries being easily diverted from the main point of whether she freely agreed to have sexual intercourse through focusing on the words she used to see whether they indicated any agreement or accord.
Another problem with the area of consent is the problem of married couples or civil partnerships because I do not think that people really know or believe that many men and women have been sexually assaulted by their partners. This most of the time goes unchecked or unreported because the general view is that the consent to have sexual intercourse or engage in any sexual activity is automatic in established relationships. Another saddening issue is that most people will not believe that someone has been raped unless they show some sort of injury. The good news is that the old law where women gave automatic consent since they were established relationships is long gone. R v R (1991) 2 ALL ER 257 (11)
There is also the concept of presumed consent which can be confusing to most people since it is common sense that man would kiss or show affection towards their partner as no permission would be needed to do so and that goes for sex as well. That being said, it should not be taken for granted just because people are in a relationship because anyone has the right to refuse and say no to any sexual activity regardless of their relationship status. The problem really lies with the word “NO” .The ambiguity of the word leads to men thinking the women mean not at that particular time or place.
There is also the issue of intoxication and consent where one might engage in sexual activity without giving consent or not remember giving consent because of the effects of the intoxication. That being said, should someone be convicted of rape if the alleged victim had agreed to a night of intoxication and sexual activity ensued? the courts should look at the relationships victim and defendant in the case and the evidence surrounding the case because there are instances where the woman could be embarrassed to admit she made a mistake of being intoxicated and instead accuse the man of rape though there are instances where the woman could be scared to report the case due to the fear of having no case to report because she can’t remember not consenting.
The case of R v Hysa (2007) EWCA Crim 2056 is an example of an intoxication case where the alleged victim had been heaving intoxicated and under the influence of cannabis when the supposed crime took place. The alleged victim said she did not consent and that she did not think she had the sex willingly but that she didn’t remember because she was drunk. The trial judge ruled that there was on case as the evidence as to consent was unclear though the Court of Appeal allowed an appeal from the prosecution against the ruling in order for the jury to review the circumstances of the case. The defendant was eventually convicted of rape. This case shades light on the fact as to why many women still live in fear of not being believed when they say they don’t remember saying no after being raped while under an intoxicated state which it is of great importance that the courts look at the relationship between the defendant and the victim. This however can be seen as being impartial on the basis that the victim’s prior agreement to sexual intercourse shouldn’t be assumed to be acceptance of the consensual sex that follows after. It is therefore imperative that each case be treated uniquely while considering the nature of circumstances surrounding the alleged crime and the relationship between the victim and the defendant. Section 75 of the Sexual Offenses Act 2003 sets out the circumstances where a person may not have consented.
These presumptions arise if the victim was physically unable of giving consent or did not have the mental capacity of an adult for the example the case F v West Berkshire Health Authority (1989) 2 ALL ER 545 .
However, the case of R v Dougal (2005) brought raised eyebrows upon the Sexual Offenses Act 2003 and question were asked as to whether the Act gave enough protection to people in times of their vulnerability because the trial judge in this case directed the jury to give a no-guilty verdict because it could not be proved that the victim had given or not given consent in the level of intoxication that she was in.
Proving consent – Defense and Prosecution
I recently watched and listened to a mock trial where a man (defendant), Michael Schmooze was accused of sexual assaulting a woman, Private Kerry Smith under S3 of the Sexual Offenses Act 2003 where pleaded not guilty when asked although he did not speak and this was taken as not pleading guilty as the defendant lawyer pointed out that is being a long time since defendants were forced to plead. The defendant is accused of touching the victim/complainant in a sexual way and that she did not consent and that he knew she did not consent.
The issue here was whether the victim consented to the touching or whether the defendant took advantage of the state she was in since the video I watched states that the alleged victim had 8 beers and some shots of alcohol in the pub her and the defendant were in and another shot in the residence of the defendant. She said that she did not feel drunk and that she felt merry but one would argue that she was not in the right frame of mind and as the prosecution pointed out, she would not have driven home in her then current condition.
In this case, the mission of the defense council is to prove beyond reasonable doubt that the alleged victim had indeed clearly consent or given some form of consent as to allow the touching and for the prosecution to prove beyond all reasonable doubt that she did not give consent and that the defendant took advantage of her and sexually assaulted her . Another factor to consider is the relationship between the defendant and the victim. Questions such as how long did they know each other, where they in an established relationship, was there any prior activity between the two would come into mind. This would be the same for the witnesses as there is evidence of a relationship between them. On the part of the defense, when tackling a case such as this, they must look at what took place at the time of the incident, who the victims or defendant talked before the incident, at the time of the incident or immediately after the alleged crime because this is where the witnesses to the case come in, in order to back up the statements of the defendant.
The main point is the question of whether the statement of the victim in their police statement corroborate with the statement they give in court. The conduct of the witness for the defense and prosecution must also be looked because this can sway the jury in the favor of the victim or defendant depending on how they answer the cross examination and their language. For the defense to prove consent, the tone they use to question the defendant or the victim will have an effect on the people present in the court room as well as the witness during cross examination. if the defense go too hard, it will have an adverse effect on what they are trying to achieve which is to prove that there is no consent and this will evoke sympathy from the jury and if they are too soft, they risk doing the same thing which indicates that they have to be firm and direct and ask the right questions
The prosecution is faced with being factual and objective. They do not have the luxury of drama when opening. Their mission will be to evoke sympathy from the jury in order to sway them to their favour and if they manage to do this, then they have a high chance of winning the case, it should be noted that there is no consent if the victim submitted knowingly and willingly to sexual activity.
Conclusion
Even though the Sexual Offenses Act established a legal definition for the issue of consent, it is wholly conclusive for the courts and this has made it difficult when it comes to cases related to crimes of a sexual nature and capacity since there are cases which involve both intoxication and sexual assault. With this said, I think that there should be more reviews and amendment on the law of sexual assault. This will make it easier for the courts to apply the law properly and for the public to restore their faith in the law.