MARATHON DAY 1

To what extent have the statutory definition of consent in section 74 of the Sexual Offences Act 2003 and the
presumptions contained in sections 75 and 76 eased the burden of prosecution and the vulnerability of rape
victims to intrusive court procedures?

The SOA 2003 imposes two types of presumptions:

 Evidential presumptions, s.75. These can be rebutted by raising evidence that, notwithstanding the
circumstance
 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.

 Prior to 2003, the very concept of consent was fragile. “Consent” was defined in s.74 for the purposes of
this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice. It
defines consent, but in a very loose way. 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.

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 are required to prove absence of consent in the usual way by
way of 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.
This was a question that asked you to consider the policy behind the 2003 Act and how effective it has been in
delivering that policy. This was outlined in the module guide at 8.3 and Wilson 12.7. It was not simply designed for
you to regurgitate all you have learned about ss.74, 75 and 76. The overall message you should have been pursuing
is that being the chief prosecution witness (i.e. the rape victim) in a rape case is a harrowing affair, which

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discouraged victims from reporting acts of sexual violence and/or pursuing them in court. Section 75 in particular
was designed to ensure that the defendant could no longer rely on the prosecution’s usual burden to prove subjective
fault (Morgan (1975)) and absence of consent beyond reasonable doubt. A key part of this therefore was to explain
exactly what ‘the burden of prosecution and the vulnerability of rape victims to intrusive court procedures’ means
(module guide at 8.3).
Your essay should therefore have contained the following.

 Discussion of the presumptions and how they are designed to relieve the victim from having to give
evidence and suffer cross examination in cases where it is obvious that consent was not forthcoming.
 Discussion of how these changes have had the beneficial effect of encouraging more victims of rape to go
to court.
 Discussion of the meaning and application of s.74 as compared with e.g. Olugboja, R v Ali and Ashraf,
unreported, July 17, 2015, CA.
 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.
 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. 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 the latter appeared to consent to intercourse did not
necessarily mean the jury were bound to accept that this apparent consent was freely chosen.
 Discussion of the problems posed for s.74 by deception e.g. B (2006) and intoxication, e.g. Kamki, Bree
and Assange. Here at least the victim continues to have a key and problematic court role.
 Discussion of the relationship between ss.74, 75 and 76, e.g. Jheeta, Cicciarelli and Devonald.
 Discussion of the importance of ss.75 and 76 for non-invasive proof of fault as compared with Morgan.
 Under SOA 2003 honest belief in consent is not enough. The defendant’s belief that the victim consents
must be reasonable. When s.75 or 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.
 Discussion of the role of the judge in removing questions from the jury, e.g. Ciccarelli supporting the
interests of the victim where the defence case relies on consent and belief is flimsy.
 In Ciccarelli, the accused had sexually assaulted the complainant while she slept. The s.75
presumption applied that she did not consent as she was unconscious and this presumption was not
rebutted. The accused’s defence rested on the fact that while he knew the complainant was asleep,
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.