The Concept of Consent under the Sexual Offences Act 2003
| Author | Jesse Elvin |
| DOI | 10.1350/jcla.2008.72.6.536 |
| Published date | 01 December 2008 |
| Date | 01 December 2008 |
| Subject Matter | Article |
The Concept of Consent under
the Sexual Offences Act 2003
Jesse Elvin*
Abstract This article examines the provisions relating to consent under
the Sexual Offences Act 2003. It considers whether the law in this area
now possesses a satisfactory level of clarity following a number of recent
Court of Appeal decisions, and concludes that there may be a need for
further legislative reform in this respect.
Keywords Sexual Offences Act 2003; Consent; Reasonable belief;
Rape; Sexual assault
This article examines the concept of consent under the Sexual Offences
Act 2003. Scholars have consistently raised concerns regarding this
concept.1Most of these concerns were raised before the existence of
leading cases on the correct interpretation of the relevant sections of the
2003 Act. Focusing on the definition of consent under s. 74 of the Act,
as well as the rebuttable and conclusive presumptions regarding consent
and reasonable belief in it under ss 75 and 76, this article examines
recent case law with a view to determining whether the courts have
succeeded in clarifying the definition of consent and the appropriate
application of the evidential presumptions. It concludes that further
legislative reform may be necessary in order to clarify the law because
the Judicial Studies Board and the Court of Appeal seem to be reluctant
to offer comprehensive guidance in this area, and that it is accordingly
regrettable that the Government has withdrawn its plan to reform the
substantive law in this respect.
An overview of the 2003 reforms regarding consent
Before examining the recent case law, it is important to consider the
background to the 2003 reforms regarding consent so that the case law
can be understood in its context. The issue of consent is central to the
offence or rape and the three other principal offences in England specif-
ically involving non-consensual sexual activity, namely: (1) assault by
penetration; (2) sexual assault; and (3) causing a person to engage in
* Lecturer in Law, The City Law School, City University London; e-mail
Jesse.Elvin.1@city.ac.uk.
1 See, e.g., S. Cowan, ‘Freedom and Capacity to Make a Choice: A Feminist Analysis
Of Consent in the Criminal Law of Rape’ in V. Munro and C. F. Stychin (eds),
Sexuality and the Law: Feminist Engagements (Routledge-Cavendish: London, 2007)
51; C. Elliott and C. de Than, ‘The Case for a Rational Reconstruction of Consent
in Criminal Law’ (2007) 70 MLR 225 at 238; and V. Tadros, ‘Rape Without
Consent’ (2006) 26 OJLS 515 at 517.
519The Journal of Criminal Law (2008) 72 JCL 519–536
doi:1350/jcla.2008.72.6.536
sexual activity without consent.2The Sexual Offences Act 2003 in-
troduced the latter three offences, placed the definition of consent on a
statutory footing, introduced certain evidential presumptions, altered
the fault element of the offence of rape, and made numerous other
reforms. The origins of the Act lie in the recommendations of a Home
Office review completed in July 2000. Recognising that the law needed
reviewing because, amongst other things, it was ‘a patchwork quilt of
provisions ancient and modern that . . . [lacked] coherence and struc-
ture’,3the Home Office created a body in order to conduct a review of
sex offences. The paper produced by the body set out recommendations
to Ministers.4The Home Office had sought recommendations that
would: (a) ‘provide coherent and clear sex offences which protect
individuals from abuse and exploitation’5; (b) ‘enable abusers to be
appropriately punished’6; and (c) ‘be fair and non-discriminatory in
accordance with the European Convention on Human Rights and the
Human Rights Act [1998]’.7The Home Office was concerned to modern-
ise comprehensively the law on sexual offences in order to create ‘a
framework that protects the weaker members of society—particularly
children and vulnerable people—and those who have been subject to
sexual abuse or exploitation’.8As the sexual offences review body put it
in relation to the law at the time of the review, ‘much of the law dates
from a hundred years ago and more, when society and the roles of men
and women were perceived very differently . . . The result is a loose
framework of offences, designed to meet specific problems that caused
concern in their day, but with little coherence or structure’.9The advent
of a new century and the incorporation of the European Convention on
Human Rights into English law, ‘with its emphasis both on the respons-
ibilities of the state and the rights of the citizen . . . [provided] a timely
context in which to examine this area of the law’.10 In conducting its
analysis, one of the review body’s fundamental guiding principles was
that the law on sex offences embodies society’s view ‘of what is right and
wrong in sexual relations’,11 and that ‘this judgment on what is right
and wrong should be based on assessment of the harm done to the
individual (and through the individual to society as a whole)’.12 As
a corollary of its adoption of this liberal harm principle, the review
body also took the position that the criminal law should not intrude
2 Together with rape, these offences have been described as ‘the . . . main offences
in the Sexual Offences Act 2003’ (J. Temkin and A. Ashworth, ‘The Sexual
Offences Act 2003: (1) Rape, Sexual Assaults and the Problems of Consent’ [2004]
Crim LR 328).
3 Home Office, Setting the Boundaries: Reforming the Law on Sex Offences, Volume 1
(2000) para. 0.2.
4 Ibid. at i.
5 Ibid. at para. 0.3.
6 Ibid.
7 Ibid.
8 Ibid. at para. 1.1.3.
9 Ibid. at para. 1.1.2.
10 Ibid. at para. 1.1.3.
11 Ibid. at para. 0.6.
12 Ibid.
The Journal of Criminal Law
520
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