Sexual Offences - Consent

Question 1

Where is the definition of consent found?
What is this applicable to?

Answer 1

s.74
Sexual offences only

Question 2

What does consent address?

Answer 2

addresses mens rea element of s.1-4 offences

Question 3

What are the 3 key parts of consent?

Answer 3

• agreement by choice
• capacity to make the choice
• freedom to make the choice

Question 4

What has changed with the SOA, with regards to consent?

Answer 4

Before SOA, you only needed an honest belief in consent - now a reasonable belief is required

Question 5

Does A have to take steps to ascertain B’s consent?

Answer 5

No
it would be helpful for A, but it is not a requirement

Question 6

Where do we find shortcuts for the question of consent?

Answer 6

s.75 and s.76 SOA

Question 7

What is the difference between s.75 and s.76?

Answer 7

• s.76 has conclusive presumptions → if these apply, there was not consent, and there are no rebuttals available
• s.75 has evidential presumptions → if these apply, there was no consent, unless sufficient evidence can be found to the contrary

Question 8

What does s.77 SOA do?

Answer 8

clarifies ‘the relevant act’ for s.1-4

Question 9

What happens if these shortcuts don’t apply?

Answer 9

you go the long way around - s.74

Question 10

Which cases fall under s.76(2)(a)?
- Deception as to nature (3)
- Deception as to purpose (6)

Answer 10

• Deception as to nature
  R v Williams [1923]
  Assange v Swedish Prosecution Authority [2011]
  R v McNally [2013]
• Deception as to purpose
  R v Jheeta [2007]
  R v Tabassum [2000]
  R v Green [2002]
  R v Devonald [2008]
  R v Bingham [2013]
  R v Christopher Matt [2015]

Question 11

What do s.76(2)(a) and (b) say?

Answer 11

• s.76(2)(a)
  
  • (i) D makes V think the act is not sexual in nature
  • (ii) D makes V think that his purpose in relation to the act is something that is in fact no part of his actual purpose
• s.76(2)(b)
  
  • D impersonating a person known personally to V
  • if a person that V knows personally pretends to be someone that V doesn’t know, this provision doesn’t apply

Question 12

Why is consent so crucial?

Answer 12

individual autonomy
you are responsible for the things that you choose, but not the things that happen to you

Question 13

Case examples for Agreement by choice (s.74)
- Failure to resist (2)
- Limited consent / parameters / preconditions (6)

Answer 13

Failure to resist
- R v Malone [1998]
- MC v Bulgaria [2005]

Limited consent / parameters / preconditions
- Assange v Swedish Prosecution Authority [2011]
- R(F) v DPP [2013]
- R v McNally [2013]
- R v B [2006]
- R v Lawrance [2020]
- R v Linekar [1995]

Question 14

Case examples for Capacity to choose (s.74)
- Age of consent (1)
- Impairment of rational capacities
-> mental disorder (1)
-> transient factor (1)

Answer 14

Age of consent
- R v Lee Gary Brown [2019]

Impairment of rational capacities
Mental disorder
- R v A (G) [2014]
Transient factors e.g. intoxication
- R v Bree [2007]

Question 15

Case examples for Freedom to choose (s.74) (5)

Answer 15

• R v Jheeta [2007]
• R v Bingham [2013]
• R v Olugboja [1982]
• R (Monica) v DPP [2018]
• R v Kirk [2008]