Conditional Consent? An Emerging Concept in the Law of Rape
| Author | Natalie Wortley,Gavin A. Doig |
| DOI | 10.1350/jcla.2013.77.4.848a |
| Date | 01 August 2013 |
| Published date | 01 August 2013 |
| Subject Matter | Divisional Court |
Conditional Consent? An Emerging Concept in the Law
of Rape
R (on the application of F) v DPP and A [2013] EWHC 945 (Admin)
Keywords
Rape; Sexual Assault; Consent; Decision to prosecute
This was an application for judicial review of the DPP’s refusal to initiate
a prosecution for rape and/or sexual assault of the claimant (F) by her
former partner (A). A detailed review of the DPP’s original decision had
been carried out by his principal legal adviser, Alison Levitt QC. Ms
Levitt proceeded on the basis that F’s account was ‘entirely truthful and
reliable’, but concluded that, even if a jury were to believe every word of
F’s testimony, there was no realistic prospect of conviction.
F and A were in a relationship and an Islamic marriage took place
between them in November 2009. Both before and after the marriage, A
asserted control over F, telling her that ‘as his Muslim wife [she] should
fulfil his sexual needs unquestionably’. F became increasingly fright-
ened of saying no to A ‘because of the potential consequences of doing
so’. By this, Ms Levitt concluded that F feared A would leave her.
There were three main incidents that F contended should give rise to
criminal charges. The first incident took place in May 2009. A wanted F
to come home with him for sexual intercourse. F did not want to do so,
but went to meet A in a basement gym of their university building. A
made aggressive sexual advances to F, kissing her very roughly, pulling
open her belt and trousers and grabbing at her face and hair. He pushed
her to the floor and demanded that she perform oral sex upon him, but
she refused. A then masturbated in front of F. He stopped when she
asked him to. He pushed her away and told her to leave, but she did not
do so. At some point A held F by the throat, sufficient so as to scare her.
F stated that she had feared that she might be raped during the
incident.
The next day F telephoned the Rape Crisis Line. A told her that their
relationship was over because of his behaviour, saying he had ‘crossed
the line’. F said she did not want the relationship to end. She went with
A back to the basement gym and agreed to perform oral sex upon him.
They had consensual sexual intercourse and F told A that she would not
in future refuse his sexual demands.
Ms Levitt approached the first incident, i.e. the one when sexual
intercourse did not take place, on the basis that F did not consent to A’s
conduct. However, she was of the view that a jury ‘would struggle to be
sure that at the time [her emphasis] he realised that she was not consent-
ing to what he did . . . his subsequent expressions of remorse reflected a
level of understanding which may not have existed at the time’.
The second specific incident occurred six months later, in November
2009. A and F were in bed together and argued. F was upset and turned
away from A who became aggressive and pulled off F’s pyjama bottoms,
tore her underwear and took her by the throat. The incident ended
when a child in the house woke up.
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Conditional Consent? An Emerging Concept in the Law of Rape
In respect of this incident Ms Levitt’s view was that a jury would be
likely to conclude that a ‘pattern of sexual force or roughness had
developed between [A and F], to which there was...
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