Ten years on
| Author | Catarina Sjölin |
| DOI | 10.1177/0022018314566744 |
| Published date | 01 February 2015 |
| Date | 01 February 2015 |
| Subject Matter | Comment |
Comment
Ten years on: Consent under
the Sexual Offences Act 2003
Catarina Sjo
¨lin
Nottingham Law School, Nottingham Trent University, UK
Abstract
As the clock ticked over from 30 April to 1 May 2004 the Sexual Offences Act 2003
1
came into
force and the Sexual Offences Act 1956
2
was repealed, fundamentally changingthe law on sexual
offences in England and Wales. Perhaps the most major changes were in respect of consent. This
article examines the changes the Act made to three aspects of consent: the provision of a
statutory definition, the effect of deception of C on the validity of C’s consent and the role of D’s
belief in C’s consent. To this end the article considers the pre-SOA 2003 law on consent, the
impetus and proposals for reform, the Act and how it has been implemented by the courts, and
finally how the Actcould be improved to provide greaterclarity substantively and procedurally to
achieve the aims which lay behind the reform of consent in the first place.
Keywords
Criminal law, sexual offences, rape, consent, deception, presumptions, jury directions
Consent
Consent is at the heart of rape and the other non-consent offences, but it is a complex concept, both in the
sense of being difficult and in the sense of consisting of a number of related parts. The three most impor-
tant questions arising from the concept of consent in sexual cases are:
1. What do we mean when we say C did, or perhaps more importantly did not, consent?
2. If C was deceived when giving his or her consent, was that consent valid in law?
3. How aware must D have been of C’s lack of consent for D to be guilty of a crime?
The SOA 2003 changed the answers to all three questions. To understand how and why, an examina-
tion of the previous law and the path which led to the SOA 2003 is necessary.
Corresponding author:
Catarina Sjo
¨lin, Nottingham Law School, Chaucer Building, Goldsmith Street, Nottingham NG1 5LT, UK.
E-mail: catarina.sjolinknight@ntu.ac.uk
1. Hereinafter referred to as the SOA 2003.
2. Hereinafter referred to as the SOA 1956.
The Journal of Criminal Law
2015, Vol. 79(1) 20–35
ªThe Author(s) 2014
Reprints and permissions:
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DOI: 10.1177/0022018314566744
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The law pre-SOA 2003
The definition of consent
Although originally a common law offence, rape has been mentioned in statute from the time of Edward
I,
3
although it was only in 1976 that the offence gained any statutory definition,
4
but even then ‘consent’
remained undefined. It had long been assumed that the absence of consent had to be due to force, fear or
fraud,
5
but in 1982 the Court of Appeal in Olugboja
6
stated that if this had once been the case, it certainly
was no longer, although ‘one or more of these factors will no doubt be present in the majority of cases of
rape’.
7
In 1992 the House of Lords decided in RvR
8
that consent to sex within marriage was no longer
assumed. In Malone
9
in 1998 the Court of Appeal stated that there was no need for C to communicate or
demonstrate his or her lack of consent. This helped, perhaps, with what was not necessary for there to be
an absence of consent, but it did not help as to what was necessary, or indeed what consent is.
As to direction to the jury, in Olugboja the Court of Appeal stated that:
10
Although ‘consent’ is [a] ...common word it covers a wide range of states of mind in the context of inter-
course between a man and a woman, ranging from actual desire on the one hand to reluctant acquiescence
on the other. We do not think that the issue of consent should be left to a jury without some further direction.
What this should be will depend on the circumstances of each case. The jury will have been reminded of the
burden and standard of proof required to establish each ingredient, including lack of consent, of the offence.
They should be directed that consent, or the absence of it, is to be given its ordinary meaning and if need be,
by way of example, that there is a difference between consent and submission; every consent involves a sub-
mission, but it by no means follows that a mere submission involves consent: per Coleridge J. in Reg. v. Day,
9 C. & P. 722, 724. In the majority of cases, where the allegation is that the intercourse was had by force or the
fear of force, such a direction coupled with specific references to, and comments on, the evidence relevant to
the absence of real consent will clearly suffice. In the less common type of case where intercourse takes place
after threats not involving violence or the fear of it, ...we think that an appropriate direction to a jury will
have to be fuller. They should be directed to concentrate on the state of mind of the victim immediately before
the act of sexual intercourse, having regard to all the relevant circumstances; and in particular, the events
leading up to the act and her reaction to them showing their impact on her mind. Apparent acquiescence after
penetration does not necessarily involve consent, which must have occurred before the act takes place. In
addition to the general direction about consent which we have outlined, the jury will probably be helped
in such cases by being reminded that in this context consent does comprehend the wide spectrum of states
of mind to which we earlier referred, and that the dividing line in such circumstances between real consent
on the one hand and mere submission on the other may not be easy to draw. Where it is to be drawn in a given
case is for the jury to decide, applying their combined good sense, experience and knowledge of human nature
and modern behaviour to all the relevant facts of that case.
3. The Statute of Westminster 1285 (13 E 1, st. 1) stated that rape was a felony.
4. The Sexual Offences (Amendment) Act 1976, s. 1 provided definitions for the SOA 1956, s. 1 following the recommendations
of the Report of the Advisory Group on the Law of Rape (Cmnd 6352) (HMSO: London, 1975), also known as the Report of
the Heilbron Committee.
5. The 38th edition of Archbold Criminal Pleading: Evidence and Practice (Sweet & Maxwell: London, 1973), for instance,
makes this assertion at para. 2871 and cites East’s Pleas of the Crown and Hale’s Pleas of the Crown. This is cited as the
‘classic’ definition of rape by Lord Hailsham in DPP vMorgan [1976] AC 182 at 210. However, neither of these works uses
the phrase, speaking instead of rape being ‘by force and against her will’ (1 East’s Pleas of the Crown 434) or simply ‘against
her will’ (1 Hale’s Pleas of the Crown 628).
6. [1982] QB 320.
7. Ibid. at 331.
8. [1992] 1 AC 599.
9. [1998] 2 Cr App R 447 at 457.
10. Above n. 6 at 332.
Sjo¨lin 21
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