Evidence of Autism Spectrum Disorder and its Relevance to a Reasonable Belief in Consent in the Context of Sexual Offences
| Published date | 01 June 2024 |
| DOI | http://doi.org/10.1177/00220183241263663 |
| Author | Adam Jackson |
| Date | 01 June 2024 |
| Subject Matter | Case Note |
Evidence of Autism Spectrum
Disorder and its Relevance to a
Reasonable Belief in Consent
in the Context of Sexual Offences
R v Jacobs [2023] EWCA Crim 1503
Keywords
Rape, consent, reasonable belief in consent, autism spectrum disorder, expert evidence
On the 15 September 2022, the Applicant (RJ), who at the time was a practising barrister, was convicted
of one count of rape (s.1 Sexual Offences Act 2003) following retrial at the Central Criminal Court and
sentenced to 4 year’s imprisonment. Although the incident took place in September 2017, RJ was not
charged until June 2020. Following charge, RJ was diagnosed with an Autism Spectrum Disorder
(ASD) leading to a further delay in the proceedings which eventually culminated in RJ’s conviction.
RJ and the complainant (L) met via a dating app in August 2017 and subsequently commenced a con-
sensual sexual relationship. On the 17 September 2017, RJ and L engaged in consensual vaginal inter-
course during which RJ raped L ‘by forcing his penis into her anus without her consent’(at [3]). The
prosecution case was that, after engaging in sex from behind, RJ told L to ‘wait there’and ‘without
any discussion or warning, he forced his penis into her anus’(at [24]). RJ continued with the penetration
for 20–30 s despite being told to stop twice and only withdrew when L ‘screamed “get off”’ (at [24]).
The basis of RJ’s defence at trial was that L consented to the penetration or, if she did not consent,
RJ had a reasonable belief in her consent at the material time. RJ ‘denied that the penetration lasted
for anything like 20 or 30 s’(at [30]). He asserted that ‘when he spread L’s buttocks it would have
been obvious to her what he was doing, and she had ample time to tell him to stop’(at [30]) and that
he withdrew ‘immediately’(at [29]) when asked to do so.
At trial, expert evidence, drawn from two reports by expert psychiatrists, was admitted as ‘Agreed
Facts’(at [14]). Neither expert was called to give evidence. The ‘Agreed Facts focused on the implica-
tions of the applicant’s behaviour after the incident’(at [14]) in part to explain the defendant’s behaviour
(including laughing at the complainant) in the immediate aftermath of the incident and in part to explain
the content of derogatory and insensitive text messages about the incident and the complainant sent by RJ
to a friend afterwards. RJ’s ASD diagnosis was not advanced as being relevant to the issue of consent or
the reasonableness of RJ’s belief in consent (at [11]).
Following refusal of an application for leave to appeal by a single judge, RJ renewed his application
for leave to appeal to the full court. The basis of RJ’s appeal, relying on ‘observations’(at [19]) by the
Court of Appeal in R v B (MA) 2013 EWCA Crim 3, was that:
(i) The jury were not given sufficient information on the applicant’s autism and its relevance to his
belief that L was consenting to anal intercourse;
(ii) The jury were not directed by the judge that autism was a relevant characteristic of the applicant
when assessing whether his belief in that consent was, or may have been, reasonable (at [19]).
Case Note
The Journal of Criminal Law
2024, Vol. 88(3) 211–215
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183241263663
journals.sagepub.com/home/clj
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