Proving Consent in Sexual Cases: Legislative Change and Cultural Evolution

AuthorJenny McEwan
Date01 January 2005
Published date01 January 2005
Subject MatterArticle
(2005) 9 E&P 1–28
Proving consent in sexual
cases: Legislative
change and cultural
By Jenny McEwan*
Professor of Criminal Law, University of Exeter;
Abstract. In England and Wales, the Sexual Offences Act 2003 has redefined
crimes of serious sexual assault and introduced evidential presumptions in
relation to consent. At the same time, the Criminal Justice Act 2003 has made
changes to the law of evidence that may affect sexual offence trials. Its provisions
must be understood in conjunction with judicial attempts to interpret the ‘rape
shield’ provided by s. 41 of the Youth Justice and Criminal Evidence Act 1999.
onsiderable parliamentary and judicial activity has been taking place in
England and Wales in relation to trials of serious sexual assault. Much of
this, and much of the extensive literature on the subject, has focused on
cross-examination of complainants on their previous sexual experience. But it is not
just the endless quest for the perfect ‘rape shield’ that may affect the way the chief
prosecution witness is treated and perceived by the court. The mens rea for rape,
assault by penetration,1 sexual assault,2 and causing a person to engage in sexual
activity without consent3 has been rewritten in the Sexual Offences Act 20034 to
abolish the Morgan5 defence. Under s. 1(1)(c) A commits rape if he does not reasonably
believe that B consents. Whether a belief is reasonable is to be determined having
regard to all the circumstances, including any steps A has taken to ascertain whether
* I am grateful to Roger Leng for his penetrating comments on an earlier draft, but take full
responsibility for errors that remain.
1 Sexual Offences Act 2003, s. 2(1).
2Ibid. s. 3(1).
3Ibid. s. 4(1).
4 Much criticised: e.g. A. J. Ashworth and J. Temkin, ‘The Sexual Offences Act 2003: Rape,
Sexual Assault and the Problems of Consent’ [2004] Crim LR 328; J. C. Spencer, ‘The Sexual
Offences Act 2003: Child and Family Offences’ [2004] Crim LR 347.
5 [1976] AC 182. A genuine belief in consent was a defence, however unreasonable it might be.
B consents.6 Developments in the law of evidence in the Criminal Justice Act 2003
may afford new protection for complainants against hostile cross-examination.
Prosecutors also may have more scope to use a defendant’s criminal history to prove
the absence of consent. However, legislative changes have to battle against the
operation of a variety of myths and stereotypes that exist in popular culture. This
article examines to what extent these may continue to affect jury and judicial decision
What is consent?
Under s. 74 of the Sexual Offences Act 2003, consent is present where B agrees by
choice and has the freedom and capacity to make that choice. As in R v Olugboja,7
whether or not this is the case is a matter for the jury. Many commentators were
concerned that the very broadness of the Olugboja decision could lead to confusion8
and uncertainty.9 Accordingly, the 2003 Act sets out a number of instances where
lack of consent is to be conclusively presumed, and others where the defendant has
the burden of adducing some evidence that the complainant consented to the sexual
activity. The operation of these presumptions is discussed below. But in those cases
falling outside the presumptions, the tribunal of fact is free under s. 74 to take
account of any factors which could have overridden the complainant’s free choice at
the time of the alleged assault. The significance of Olugboja was to scotch any
assumption that rape is inevitably linked with the infliction of violence. Where a
particular case involves no actual violence or injury, the trial judge should explain
that its absence does not mean that the complainant consented.10 However, research
shows that police, prosecutors and finders of fact are less likely to be convinced by
allegations of rape where no violence took place. Complainants have been mortified
to be told that their bruises are not severe enough for the case to go forward11 or to be
asked in cross-examination, ‘Why did no one hear screams?’12
6 Sexual Offences Act 2003, s. 1(2).
7 [1981] 3 All ER 443.
8 Home Office, Setting the Boundaries: Reforming the Law on Sex Offences (Home Office: London,
2000) 10.
9 J. Temkin, Rape and the Legal Process (Oxford University Press: Oxford, 2002) 92; Criminal Law
Revision Committee, Sexual Offences: Fifteenth Report of the Criminal Law Revision Committee,
Cmnd 9213 (1983) para. 2.25.
10 Although the government rejected calls for a standard direction on consent, Government Reply
to the Fifth Report Home Affairs Committee, Session 2003–3 HC 639, Sexual Offences Bill, Cm 5986
11 J. Harris and S. Grace, A Question of Evidence: Investigating and Prosecuting Rape in the 1990s,
HORS 196 (Home Office: London, 1999) 21.
12 B. Brown, M. Burman and L. Jamieson, Sex Crimes on Trial: The Use of Sexual Evidence in Scottish
Courts (Edinburgh University Press: Edinburgh, 1993) 183.

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