Topic 8 – Rape
Completion requirements
Introduction
The law of rape is contained in the Sexual Offences Act 2003 (SOA 2003). This Act reordered
and restructured all sexual offences, whose rationale and structure reflected their piecemeal
development through the common law, the Sexual Offences Act 1956 and the later
amendments thereto. The overall philosophy is to:
provide coherent and clear sex offences which protect individuals, especially the more
vulnerable, from abuse and exploitation, enable abusers to be appropriately punished, and be
fair and non-discriminatory in accordance with the European Convention on Human Rights and
the Human Rights Act 1998.
Part 1 of the SOA 2003 enacts the newly constituted structure of sexual offences, which
includes rape, assault by penetration, sexual assault and causing a person to engage in sexual
activity without consent. It deals with the issue of consent and, in particular, seeks to simplify the
process of establishing absence of consent by the use of presumptions. It also covers child sex
offences, including those taking place within a family context. Part 2 is largely a re-enactment of
the Sex Offenders Act 1997, containing measures for the protection of the public. In this topic,
we will be examining just one sexual offence, namely rape.
8.1 Section 1 Sexual Offences Act 2003 – rape
(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances,
including any steps A has taken to ascertain whether B consents.
(3) Sections 75 and 76 apply to an offence under this section.
(4) A person guilty of an offence under this section is liable, on conviction on indictment, to
imprisonment for life.
8.1.1 Conduct elements
The actus reus of rape involves the non-consensual penetration of the mouth, anus or vagina of
a man or a woman by a man’s penis. Penetration by the penis is key to the actus reus of rape.
Penetration of the vagina, anus or mouth with the tongue or finger or with objects such as
broom handles, bottles or dildos is not rape. It is the separate offence of (sexual) assault by
penetration (s.2 SOA 2003).
Under s.79(2) SOA 2003, ‘Penetration is a continuing act from entry to withdrawal.’ This
enshrines the pre-SOA 2003 decision in Kaitamaki [1985] AC 147 that a man who continues to
have intercourse after consent is withdrawn commits the actus reus of rape. Rape is an offence
which can only be committed by a man, but, since the Criminal Justice and Public Order Act
1994, it can be committed on either a man or a woman. Any non-consensual penetrative
vaginal, oral and anal sex constitutes rape. Ejaculation is not necessary (R (on the application of
F) v DPP [2013] EWHC 945 (Admin)). Under s.79(3), ‘vagina’ includes surgically constructed
vaginas following gender reassignment surgery.
Rape has, since 1992, been possible between man and wife. Before this, the consent of the
wife was presumed unless the marriage had terminated. Henceforth, the consent of the wife
must be forthcoming and all the provisions of the SOA 2003 apply to determine whether it is.
8.2 Absence of consent
In most cases of rape, the main problem for the prosecution is proving absence of consent. The
problem has been described as linked with the ‘infinite circumstances of human behaviour,
usually taking place in private without independent evidence, and the consequent difficulties of
proving this very serious offence’ (Bree [2007] per Hallett J at [36]). Until the passing of the Act,
the difficulty of proving lack of consent to a standard of beyond reasonable doubt created
substantial problems for the victims of rape. These problems were compounded by inflexible
and insensitive rules of procedure and evidence by which the victim, as the prime prosecution
witness, was routinely forced to defend themselves against intrusive questioning designed to
portray the victim as a woman of loose morals who was unlikely to have refused consent. This
led to the charge that the criminal justice system did not take rape seriously and tended to
prioritise the rights of the accused over those of the victim.
The SOA 2003 has sought to address that charge and to ease the burden of the prosecution by
having a number of conclusive presumptions (s.76) and evidential presumptions (s.75). The
effect of these is that, where these apply, there will rarely be any need for the victim to be cross-
examined on the question of consent; it will be presumed absent. If neither s.75 nor s.76
applies, the prosecution is required to prove absence of consent in the usual way by reference
to s.74. The prosecution will, therefore, be anxious to establish that a presumption does apply, if
possible, since it will ease its burden considerably. As a student, you should follow the same
procedure. First, consider whether a presumption applies and only if it does not consider
whether s.74 is satisfied.
8.3 The presumptions
The SOA 2003 imposes two types of presumptions.
Conclusive presumptions, s.76. These cannot be rebutted.
Evidential presumptions, s.75. These can be rebutted by raising evidence that, notwithstanding
the circumstance relied upon, the victim nevertheless did consent.
8.3.1 Conclusive presumptions
By s.76, it is conclusively presumed both that V did not consent and D did not reasonably
believe V to consent in the following circumstances:
(2)…(a) the defendant intentionally deceived the complainant as to the nature or purpose of
the relevant act;
(b) the defendant intentionally induced the complainant to consent to the relevant act by
impersonating a person known personally to the complainant.
The job of the prosecution, therefore, is to try to establish beyond reasonable doubt either of
these two circumstances. If it succeeds, the case is won without having to establish anything
else.
Section 76(2)(a)
A pre-SOA 2003 example of the first presumption is Williams [1923] 1 KB 340. D, a singing
teacher, told V, his pupil, that it was necessary to perform an act in order to improve her singing.
She agreed, not knowing, or understanding, that the act she was engaging in was sexual
intercourse. It was held that her consent was vitiated by fraud as to the nature and quality of the
act. What V was consenting to and what she thought she was consenting to were completely
different in their nature. Compare Linekar [1995] QB 250, where it was held not to be a
deception as to the nature and quality of the act for a person to trick a prostitute into having
intercourse without payment. What she agreed to (intercourse) is what she got. It is possible
that this case might be decided differently under the SOA 2003, since V could plausibly argue
that, although she consented to the nature of the act, she did not consent to its purpose. The
purpose for her, after all, was financial, not sexual. However, in Jheeta [2007] EWCA Crim
1699, the Court of Appeal stated that, where this presumption is raised, it should be the subject
of ‘stringent scrutiny’, since, if accepted, it is conclusive on the question of guilt.
Section 76(2)(b)
Before the SOA 2003, a man who induced a person to have sexual intercourse with him by
impersonating their partner committed rape. So it was rape when the defendant, the twin brother
of V’s boyfriend, had intercourse with V by pretending to be the brother: Elbekkay [1994] EWCA
Crim 1. The SOA 2003 extends the old rules on impersonation, in that consent is vitiated not
only when it is the complainant’s partner or spouse who is impersonated but also when it is any
person ‘known personally to the complainant’. No doubt there will be some interesting cases
arising out of social-networking friendships concerned with establishing exactly what ‘known
personally to the defendant’ means. The key point to remember is that the presumption only
applies where the person impersonated is known personally to the complainant.
Section 76: questions of procedure
The procedure, where there is an issue that consent may be vitiated by one of the
circumstances in s.76, is that the prosecution will seek to establish the existence of that
circumstance. If that fails, the prosecution will then seek to negate consent by relying on s.74.
This is what occurred in Jheeta (2007). D began a sexual relationship with C. Whenever C tried
to end her relationship with D, he sent her text messages purportedly from different ‘police
officers’ telling her it was her duty to sleep with him, otherwise she would receive a fine. D was
arrested and admitted sexual intercourse had taken place.
The prosecution sought to rely on s.76(2)(a), arguing that C was deceived as to the nature and
purpose of the act. The Court of Appeal ruled that s.76 was inapplicable. C had not been
deceived as to the nature or purpose of the sexual intercourse, but only as to the situation she
was in. This did not mean that she was consenting. Rather, the prosecution were compelled to
do their job properly: that is, to prove her absence of consent by reference to s.74 (which it
succeeded in doing). The effect of the deception was that the complainant had not exercised a
free choice as to whether to have intercourse or not. D was convicted of rape.
8.3.2 The evidential presumptions
By s.75, where one of six different circumstances occur, it is a rebuttable evidential presumption
that the complainant did not consent to the relevant act, and that the defendant did not believe
that the complainant consented to the relevant act.
The key difference between these presumptions and the presumptions in s.76 is that the
evidential presumptions can be rebutted by the raising of relevant evidence. This will generally
not be easy, but it is possible. By virtue of s.75(2), the relevant circumstances are that:
any person was, at the time of the relevant act or immediately before it began, using violence
against the complainant or causing the complainant to fear that immediate violence would be
used against him;
any person was, at the time of the relevant act or immediately before it began, causing the
complainant to fear that violence was being used, or that immediate violence would be used,
against another person;
the complainant was, and the defendant was not, unlawfully detained at the time of the relevant
act;
the complainant was asleep or otherwise unconscious at the time of the relevant act;
because of the complainant’s physical disability, the complainant would not have been able at
the time of the relevant act to communicate to the defendant whether the complainant
consented;
any person had administered to or caused to be taken by the complainant, without the
complainant’s consent, a substance which, having regard to when it was administered or taken,
was capable of causing or enabling the complainant to be stupefied or overpowered at the time
of the relevant act.
All these situations involve circumstances where it is unlikely, without being impossible, that V
consented and that D had reasonable grounds for believing that. If you think about it, it would be
quite a rare circumstance for someone to have intercourse with a sleeping person who actually
consents to the act. Rare but not impossible. The example often given is that of a couple who
have got into the habit of having sex at night when the woman is asleep.
The procedure to be followed is that the prosecution must prove beyond reasonable doubt that
the circumstance existed (e.g. that V was asleep when D had intercourse with V). V is then
presumed not to have consented and that D is presumed to have known that. Another example
of an evidential presumption is where D used force or threat of force before or at the time of the
relevant act. Again, upon proof of this, the prosecution will win its case without having to
specifically prove absence of consent unless D is able to offer plausible evidence in rebuttal
(e.g. by raising plausible evidence that sleeping sex was a regular consensual occurrence or, in
the violence case, by raising plausible evidence that both parties were fetishists and were role
playing with consent). If D does this successfully, the prosecution are back to square one and
must prove absence of consent by reference to the statutory definition which appears in s.74. If
the prosecution cannot do this, D is acquitted.
Section 75(2)(f) typically covers cases where D secretly introduces a ‘date rape’ drug such as
rohypnol into V’s drink or ‘spikes’ V’s soft drink with alcohol. Section 75(2)(f) does not require
that V is stupefied or overpowered by the substance, only that the substance was capable of
producing this effect. If the prosecution can prove that this substance was administered or
caused to be taken, it is presumed that V did not consent to intercourse and that D had no
reasonable grounds for believing that she did. Again, however, the defendant can rebut the
presumption by raising plausible evidence that, notwithstanding D’s subterfuge, V did consent to
the act of intercourse (see Illustration 2). If he is successful, the prosecution must prove
absence of consent by reference to s.74.
8.3.3 Section 74 – the statutory definition of consent
All the standard sexual offences, including rape and sexual assault, require the prosecution to
prove that the victim did not consent to the sexual contact. As has been explained, the
presumptions, where applicable, make the prosecution’s task considerably easier in this
respect. Where the presumptions do not apply, the prosecution must prove absence of consent
by reference to s.74, which provides the nearest thing to a statutory definition. Prior to 2003, the
very concept of consent was fragile. What is it to consent to sex? Does it require wholehearted
acceptance? Does one consent to sex when one reluctantly acquiesces to avoid a big
argument? This conceptual fragility led to huge problems in establishing its absence. In
Olugboja [1982] QB 320, the victim’s case was simple: ‘I didn’t consent, although I did not
struggle. I was terrified and could do nothing to resist.’ The defendant’s case was equally
simple: ‘I did not threaten or use force on her. She consented.’ The Court of Appeal was forced
to duck the issue by relying on the ‘good sense of the jury’. Dunn LJ said that:
the dividing line ... 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.
Section 74 does little to improve the situation. It defines consent, but in a very loose way, stating
that ‘a person consents if he agrees by choice, and has the freedom and capacity to make that
choice’. The concerns are that ‘freedom’ and ‘choice’ are:
ideas which raise philosophical issues of such complexity as to be ill suited to the needs of
criminal justice – clearly those words do not refer to total freedom of choice, so all the questions
about how much liberty of action satisfies the ‘definition’ remain at large.
(Temkin, J. and A. Ashworth ‘The Sexual Offences Act 2003: (1) Rape, sexual assaults and the
problems of consent’ (2004) Crim LR 328–46, 336.)
In Doyle [2010] EWCA Crim 119, a case involving the rape of the defendant’s ex-partner, the
defence noted the Judicial Studies Board Specimen Direction, no. 53, which embodied the
direction given by Pill J in the trial of Mohammed Zafar:
A female partner may not particularly want sexual intercourse on a particular occasion, but
because it is her husband or her partner who is asking for it, she will consent to sexual
intercourse. The fact that such consent is given reluctantly or out of a sense of duty to her
partner is still consent.
Although the SOA 2003 provides a statutory definition of consent, its indeterminacy has led to
the Olugboja model continuing to be heavily influential in terms of jury directions in cases where
consent is an issue. The jury’s determination is final. In Kirk [2008] EWCA Crim 434, the Court
of Appeal upheld the conviction of a defendant who had made sexual intercourse the condition
of a gift of money needed by the young homeless victim to buy food. In so doing, it approved the
distinction drawn by the trial judge between consent and ‘mere submission’, without clarifying it,
which formed the basis of the decision in Olugboja. In R v Ali and Ashraf [2015] EWCA Crim
1279, the Court of Appeal ruled that, in the case of a vulnerable, immature complainant, who
had been groomed by the defendants, the mere fact that, from the evidence presented (her
statement to the police when interviewed), the complainant appeared to wholeheartedly consent
to intercourse did not necessarily mean the jury were bound to accept that this apparent
consent was freely given. This case illustrates how indeterminate the concept of consent is and
how much responsibility lies with the jury.
Intoxication and consent
The case of Bree [2007] EWCA Crim 804 illustrates another of the circumstances rendering
proof of consent problematic, namely intoxication. The fact of intoxication may affect both a
person’s capacity to consent and their freedom of choice. It may also disinhibit, which is
perfectly consistent with consent. The defendant was a 25-year-old man of excellent previous
character. After a very heavy evening drinking together, he had sexual intercourse with a young
woman aged 19 years. He was charged and convicted of rape. The victim stated in evidence
that, having lost consciousness, she awoke to find the defendant engaging in sex with her. The
prosecution’s case was that, although the complainant was not so drunk as to lack the capacity
to consent, she did not in fact consent to intercourse. She knew that she did not want to have
sexual intercourse, and, so far as she could, made that clear. The trial judge failed to put this
case clearly to the jury and so the Court of Appeal quashed the conviction. How should the case
have been put? The position appears to be as follows.
If the alcohol renders the victim unconscious or prevents the victim from knowing what is
happening, then the victim does not consent due to lack of capacity. If the effect of the alcohol
prevents the victim from communicating their lack of consent, they do not consent due to lack of
free choice. Questions of proof will be paramount. If the effect of the alcohol is to cause the
victim to engage in sexual activity, which they would not have done if sober, they still do
consent. In this latter case, as was stated controversially in Dougal (2005), ‘a drunken consent
is still consent’.
In Kamki (2013), the Court of Appeal approved the following direction of the trial judge in
another case involving sexual activity while intoxicated that raised questions of consent. The full
quotation is given here, as it is very helpful:
A woman can have the capacity to make a choice to engage in sexual activity, even when she
has had a lot to drink obviously. Alcohol can make people less inhibited than they are when they
are sober and obviously everyone is free, we are all free to decide how much to drink and
whether to have sex or not. However, if through drink a woman has temporarily lost her capacity
to choose whether to have sexual intercourse or to engage in sexual activity of another sort, she
would then not be consenting. Clearly as I have said, a person who is unconscious through the
consumption of alcohol cannot give consent, and it may well be there is before that complete
loss of consciousness, a state of incapacity to consent which can be reached.
So there are of course, and this is common sense again, various stages of consciousness, are
there not, from being wide awake to having a dim awareness of reality. In a state of dim and
drunken awareness, a person may not be in a condition to make choices, so you will need to
consider the evidence carefully in this case as to what was M’s state of consciousness or
unconsciousness at the time of penetration and decide firstly was she in a condition in which
she was capable of making a choice one way or the other. If you are sure that she was not, then
she was obviously not consenting. If you conclude, however, that she was or may have been
able to make a choice, you must decide whether she was or may have been consenting to
sexual intercourse in relation to count one, penetration of her vagina in relation to count three
and the touching of her breast in relation to count two.
Deception and consent
Does a person who agrees to sexual activity as a result of a deception, not falling within s.75 or
s.76, ‘agree by choice’? This depends, of course, on whether consent means informed consent.
If A has intercourse with B, concealing from her that he is HIV positive, does he commit the
actus reus of rape, given that consent would not have been granted had B known of his
condition? The presumptions do not apply – A does not deceive B as to the nature or purpose of
the act. Guilt depends therefore on whether consent is vitiated. In B [2006] EWCA Crim 2945,
the Court of Appeal ruled that it was not vitiated for the purpose of the offence of rape but it was
for the purpose of s.20 of the Offences against the Person Act 1861. The transmitter of the
disease would therefore be guilty under s.20.
In R (Monica) v DPP (Boyling, interested party) (2018) EWHC 3508 (Admin), the consent of a
woman to intercourse was held not to be vitiated by the fraudulent representation of her partner
that he was a fellow environmental activist when in fact he was an undercover police officer
attempting to infiltrate her organisation. Although it was accepted by the court that she would
not have consented had she known his true identity, the judge ruled that deception did not
generally vitiate consent except where s.76 applied, or where, as in Jheeta, other pressure was
brought to bear. This is a puzzling decision, which puts into question the cogency of the ‘free
choice’ concept at the heart of consent. It certainly fits ill with cases such as Kirk and Ali and
Ashraf. If those complainants did not exercise genuine free choice, why did this complainant?
Two other important decisions also centre on the phrase ‘agree by choice’. In Assange [2011]
EWHC 2849 (Admin), a woman who had intercourse with a man on condition he wear a condom
was held not to have consented to the intercourse when he failed to wear one. In R (on the
application of F) v DPP [2013] EWHC 945 (Admin), a similar decision was reached when the
condition was that the man should wear a condom or otherwise not ejaculate. These are
controversial decisions, as in both cases the victim consented to the intercourse. There was no
sexual ‘violation’. Arguably, a better outcome would have been for the defendant to have been
charged with common assault, since the contact the victim consented to (safe sex) was not the
contact she received (see B above).
This reasoning was accepted in R v Lawrence [2020] EWCA Crim 971. On the basis of the
defendant’s deception that he had had a vasectomy and so was not fertile, the complainant
agreed to sexual intercourse. He was charged with rape. The question for the court was
whether his deception vitiated her consent. At first instance, the court found that it did. Quashing
the conviction, the Court of Appeal ruled that, unlike the complainants in Assange and R (on the
application of F) v DPP, the complainant here agreed to sexual intercourse with the appellant
without imposing any physical restrictions. She agreed both to penetration of her vagina and to
ejaculation without the protection of a condom. In so doing, she was deceived about the nature
or quality of the ejaculate and therefore of the risks and possible consequences of unprotected
intercourse. The deception was one which related not to the physical performance of the sexual
act but to risks or consequences associated with it.
The question of when deception vitiates consent to sexual activity – and, indeed, what counts as
deception – remains far from settled in criminal law following Lawrance. In R v BVA [2025]
EWCA Crim 1359 the Court of Appeal was asked to consider whether filming sexual activity
without consent could vitiate consent to that activity. The case concerned an appeal against a
conviction for sexual assault contrary to s.3 of the Sexual Offences Act 2003. The evidence
included a short video showing the appellant touching the complainant in a sexual manner while
she appeared to be asleep. The appellant and complainant had been in a sexual relationship,
during which the appellant had a fetish for 'sleep play'. The defence argued that the complainant
had consented both to the sexual activity and to being filmed. The prosecution accepted that,
while the complainant may have permitted sexual touching while she slept, she would not have
done so had she known that the activity was being recorded.
The central issue, therefore, was whether the filming was integral to the sexual activity and
whether the failure to disclose it could vitiate consent. Crucially, and perhaps surprisingly, the
Court of Appeal held that consent is capable of being negated where the deception (or non-
disclosure) relates to the sexual activity itself and that this extends to filming. In this case, the
Court found that the recording was closely connected to the sexual activity, not just the
circumstances. The appellant’s failure to disclose the filming deprived the complainant of the
freedom to make the relevant choice under s.74.
It is important to note that this ruling does not mean that all non-consensual filming will vitiate
consent. Where filming is merely incidental to, or no more than a background circumstance of,
the sexual activity, non-disclosure may not be sufficient to negate consent. The courts must
instead assess how closely the filming relates to the sexual activity itself. Nevertheless, this
represents a significant development in an area that, perhaps surprisingly, has not previously
been considered by the higher courts.
8.4 Procedure: relationship between ss.1, 75 and 74
It is important to understand the procedure to be adopted when there is an issue concerning the
applicability of s.75. The following illustration concerns s.75(2)(f) but the procedure to be
adopted is the same whichever of the circumstances is being relied upon.
The prosecution must normally prove:
that V did not consent, and
that D did not reasonably believe that V did consent.
In this case, however, the s.75(2)(f) presumption may apply. The procedure will be that if the
prosecution can prove beyond reasonable doubt that D, or someone else, had spiked V’s
drink/food with an intoxicant and that the amount was capable of or sufficient to stupefy V or
permit her to be overpowered, then D will be convicted, unless he can rebut the presumption.
He will seek to do this by raising plausible evidence that, although V was under the influence,
she nevertheless consented and/or that he reasonably believed V to be consenting. D will
attempt to discharge this evidential burden, typically, by claiming that V said or did certain things
which implied willingness. If this evidence is plausible, particularly if the alleged words or deeds
of V were witnessed by another person, the burden of proof shifts back onto the prosecution to
prove absence of consent (and absence of reasonable belief) in the ordinary way – that is, by
reference to s.74. If this is what happens, the prosecution will try to discharge the burden of
proof which has now returned to it by convincing the jury that a person who has intercourse with
another, having been involuntarily intoxicated, does not consent in the sense of having a ‘free
choice’, however willing they may have appeared to be. Equally, it will argue that any belief that
D had that V’s choice was free would be unreasonable given that he knew and indeed possibly
relied on the fact that V had been drugged/intoxicated. The trial judge is entitled to withdraw the
question as to whether D’s belief was reasonable if there is insufficient evidence (Ciccarelli
[2011] EWCA Crim 2665).
8.5 Mens rea
At common law, the prosecution was required to prove that the defendant lacked an honest
belief that the victim was consenting. The defendant could escape liability even if his honest
belief was not based upon reasonable grounds: DPP v Morgan [1976] AC 182. This created
serious problems for victims in court. Under s.1(1)(c) SOA 2003, the mens rea requirement has
changed. Honest belief in consent is not enough. The defendant’s belief that the victim consents
must be reasonable.
8.5.1 Intention to penetrate
An obvious, if little remarked upon, aspect of the mens rea for rape is that the defendant’s non-
consensual penetration of the complainant’s vagina, anus or mouth must be intentional. It
follows that, if in the course of consensual sexual foreplay involving genital contact, the
defendant effects penetration unintentionally, the rape is not committed, even though the
complainant did not consent to such penetration. A variation upon this scenario occurred in R v
Gabbai [2019] EWCA Crim 2287, where the defendant engaged in consensual vaginal
intercourse with the complainant in the course of which he penetrated her anus with his penis
without her consent. On appeal against conviction for rape, the Court of Appeal, allowing the
appeal, held that the trial judge erred in not directing the jury that it would not be rape if, when
penetrating the complainant’s anus, the defendant mistakenly thought he was penetrating the
vagina.
8.5.2 Fault with regard to consent
At common law, the fault element in rape was, as with most serious crimes, subjective. It is now
objective. If the defendant’s defence is that he believed the complainant to be consenting, this
will only avail him if, in the court´s opinion, his belief is based upon reasonable grounds: s.1(1)
(c) SOA 2003. Crucially, both s.75 and s.76 apply to this aspect of the fault element as well, as
we have seen, in relation to the conduct element . When s.75 or s.76 applies, such a belief will
be presumed, conclusively or evidentially, absent. Otherwise, whether a belief in consent is
reasonable is a matter for the jury. However, the trial judge may withdraw the issue from the jury
if there is insufficient evidence. In Ciccarelli, the accused had sexually assaulted the
complainant while she slept. The s.75 presumption applied that she did not consent, as the
complainant was unconscious and the defendant did not reasonably believe that she did
consent. The accused attempted to rebut the presumption by giving evidence that he had
grounds for believing she did consent. He said that he believed she would have consented
because of a sexual advance made by her to him earlier on the evening in question. The trial
judge in that case addressed s.75 and ruled that, whether or not the accused believed the victim
was consenting, there was insufficient evidence that the accused’s belief was reasonable. The
judge said that she would direct the jury accordingly. As a result of this ruling, the accused
changed his plea to guilty. He appealed against conviction on the ground that the judge’s ruling
was wrong and that the jury should have been allowed to consider whether his belief was
reasonable. In dismissing the appeal, the Lord Chief Justice said that the appellant’s reasonable
belief in the complainant’s consent:
either when she was asleep or in any other of the situations identified in section 75(2) (in what
we describe as a position of disadvantage) will be considered by the jury provided that there is
evidence which is sufficient to raise that issue.
He agreed with the trial judge that there was no evidence upon which a reasonable person
could possibly come to the conclusion that the victim would consent. The parties hardly knew
each other and had never had any form of sexual contact.
Reasonableness has to be assessed, according to s.1(2) SOA 2003:
having regard to all the circumstances including any steps [the defendant] has taken to
ascertain whether [the person] consents.
Whether a defendant’s belief is reasonable or not is assessed objectively. It matters not that the
defendant thought his belief was reasonable, if it was not. In B [2013] EWCA Crim 3, the
defendant obliged his partner to have intercourse with him, having a delusion that he was a
healer with special powers and that this would prevent his partner taking an improper interest in
other men. The court concluded that delusional beliefs such as he undoubtedly had would not in
law render reasonable a belief that his partner was consenting when in fact she was not. A
delusional belief in consent is, by definition, an unreasonable one.