Cycle 6 essay question indicative answer

The Sexual Offences Act 2003 raises serious difficulties and confusions
concerning consent. Discuss with reference to examples and case law.

This essay discusses rape of adults. If V consents, there is no crime. This is

whether or not D knew that V consented. (In the unlikely circumstances that D
wanted to commit rape, but V consented, D might be guilty of attempted rape.)
For the crime to be made out, two elements must be present (s 1 of the 2003
Act). First, V does not consent. Second, D does not honestly and reasonably
believe that V consents. Is this second element necessary? It should be a crime
simply where V does not consent. After all, in what circumstances could D
honestly and reasonably believe that V consents when V does not in fact
consent? Does this not pander to the idea that it is Vs responsibility to
communicate her non-consent, rather than Ds responsibility to be certain that
she does consent? Does it not pander to the idea that V can be to blame for
being raped in not making her lack of consent sufficiently clear? All this
reinforces the subservient status of the victim who, across all sexual offences, is
most usually a woman (and only a man can rape).

Certainly the 2003 Act improves the law: previously D was guilty only if he was
reckless as to Vs consent, whereas now he can be guilty for behaving
unreasonably. But to repeat, when could D ever reasonably mistake Vs consent?
When would V ever say yes but mean no? Perhaps when she is under pressure or
being exploited or unduly influenced but why should that ever benefit D?
Instead it should trigger yet further protection of V.

Behaving unreasonably negligently is a concept familiar to tort law, and

appropriate in that context. Most people drive cars. Most people need to: to get
to work, to take the children to school, to do the weekly shopping. But we are all
human, we all make mistakes, we all have the occasional accident. And tort law
only holds us liable if we behaved unreasonably. Even reasonably careful people
have accidents, so tort law allows us a margin of error. How can it ever be
appropriate to have a margin of error in rape? No man ever needs to put his
penis inside another person; why should he ever be granted a margin of error in
doing that? What could possibly be unacceptable about requiring him to ask
first?

And yet we are bombarded with images of real men taking sex, without ever a
discussion about consent. Witness the new James Bond film. He has sex twice.
The first time is with a widow, the day of her husbands funeral, after she has
consumed alcohol and been threatened with death, after she has slapped him,
his response being to smash her property and grab her. The second time is with
a younger girl he has promised to look after, and is supposed to be protecting
from death by hiding her away, alone with him, and occurs again just after an
attempt on her life. And his behaviour is supposed to be heroic?
Perhaps some men fear that a woman, free of any pressure or exploitation or
influence, might say yes but secretly mean no, deliberately. Why would a woman
ever deliberately procure her own rape against her wishes? First, that very
proposition is a logical paradox (and so factually impossible). Second, if any
person says yes, if they later claim that they did not consent, that simply raises
questions of credibility. Their denial of consent might not be believed. The law
already protects people from this logically paradoxical position.

s 75 of the 2003 Act makes it rebuttably presumed that V did not consent, and
that D did not reasonably believe otherwise, including such situations as: V was
threatened with violence, or unconscious, or had been administered drugs. How
is this only a rebuttable assumption? For example, how could it ever be
reasonable to assume an unconscious person consents to sex at the time? How
could it ever be unacceptable to require D first to wake V up? There are
conclusive presumptions in s 76, like impersonating someone known to V how
often do these ever happen? And anyway, even if these sections dont apply, still
we fall back on the general question of whether V consented: see Assange v
Swedish Prosecution Authority, so really they dont short-circuit the process
anyway.

Consent is defined as the freedom and capacity to make a choice (s 74), capacity
being the ability to understand the facts and weigh them in the balance: Cooper.
That seems about right. Yet we erode that freedom, and deny that capacity,
when we allow D to mistake Vs lack of consent.