CRIMINAL LAW

SEXUAL OFFENCE ACT 2003

PROBLEM QUESTION SOLVING PATTERN

Rachel and Steve are married, although they separated a year ago and have been
living apart. One evening, they unexpectedly meet at a mutual friend’s party and speak
to each other for the first time in a year. They are surprised to find that they get on really
well. They enjoy spending the evening talking and they share a few glasses of wine
together. Unbeknown to both Rachel and Steve, the wine has been spiked with vodka.
After a lovely evening, Steve walks Rachel back to her flat. Rachel invites Steve in for a
coffee, and since it is late she suggests that he stays over and offers him the sofa to
sleep on. They talk late into the night until Steve suggests that he sleeps in Rachel’s
bed. Rachel is reluctant at first, but Steve assures her that he simply wants a good
night’s sleep and nothing more. Eventually, Rachel agrees to allow Steve to stay in her
bed. During the night, after Rachel has fallen asleep, Steve wakes Rachel up and asks
her if he can have sexual intercourse with her. In a half-asleep state, Rachel says ‘no’,
but after Steve pleads with her, she eventually gives in to Steve’s demands on the
condition that he does not ejaculate inside her vagina. They have sexual intercourse
and Steve does ejaculate inside Rachel’s vagina.

Consider whether Steve is criminally liable for any offence.

ANSWER PLAN
➜ Consider Steve’s liability for the offence of rape. You will need to address the issues
of marital rape and consent.
➜ In particular, you will need to consider whether the evidential presumptions under
section 75(1) are triggered here by section 75(2)(f), SOA 2003 in respect of the wine
being spiked and whether the fact that this act was carried out by another person and
unbeknown to Steve has any bearing on his potential liability here.
➜ You will need to discuss whether the evidential presumptions under section 75(1)
are triggered here by section 75(2) (d), SOA 2003 in light of the fact that Rachel is half-
asleep during sexual intercourse.
➜ You will also need to explore the definition of consent under section 74 and the issue
of consent and submission. Make reference to the cases of Olugboja [1982] QB 32 and
McAllister [1997] Crim LR 233.
➜ You should consider the recent Divisional Court cases on conditional consent, such
as R (F) v DPP [2013] EWHC 945 (Admin) and Assange v Swedish Prosecution
Authority [2011] EWHC 2849 (Admin).

Ans: This question requires consideration of the liability of Steve for the offence of rape.
Rape is defined under section 1(1) of the Sexual Offences Act 2003 (SOA 2003). The
actus reus requires the penetration of the vagina, anus or mouth, with the defendant’s
penis, where the complainant does not consent. The mens rea is intentional
penetration, where the defendant had no reasonable belief in consent.

Steve may be guilty of the rape of Rachel. It is clear from the question that vaginal
sexual intercourse took place. It is also clear that the penetration is intentional.2 Steve
and Rachel are married, albeit estranged; the law is clear that marital rape is recognised
as rape (R v R [1991] 3 WLR 767). The issue in this question is really one of consent.
The prosecution must establish that Rachel was not consenting and that Steve did not
reasonably believe that she was consenting.3 Consideration must be given to the
evidential and conclusive presumptions under section 75(1) and section 76(1), SOA
2003.

There is no evidence to suggest that the presumptions under section 76(1) apply since
none of the circumstances under section 76(2) apply. However, the evidential
presumptions under section 75(1) need further discussion. Section 75(1) sets out two
evidential presumptions: that the complainant did not consent and that D did not
reasonably believe that she consented. These are relevant where one of the
circumstances under section 75(2) is applicable and D knew this. These presumptions
may apply due to the fact that Rachel’s drink was spiked (s. 75(2) (f)) or because she
was half-asleep when Steve begins to have intercourse with her (s. 75(2) (d)). Section
75(2)(f) applies where a person administers or causes to be taken by the complainant a
substance capable of causing or enabling the complainant to be stupefied or
overpowered at the time of sexual intercourse. Here, Rachel’s drink has been spiked
with vodka, which is a substance that is capable (in sufficient quantities) of causing
Rachel to be stupefied or overpowered. The person administering the substance need
not be the defendant, but the defendant must be aware that Rachel’s drink was spiked.
Since Steve was not aware that Rachel’s drink had been spiked, section 75(2) (f) does
not apply. Section 75(2) (d) applies where the complainant is asleep or unconscious
and the defendant knows that. Here, Rachel is only half-asleep so it is not entirely clear
whether the evidential presumptions under section 75(1) are triggered. Since Rachel
responds verbally to Steve, he may argue that she was not asleep and that if she was,
he was unaware that she was asleep. Thus, the presumptions under section 75(1) will
not apply. This will mean that it will not be presumed that Rachel was not consenting
and it will not be presumed that Steve did not reasonably believe that she was
consenting.

If the presumptions under sections 75(1) and 76(1) do not apply, the definition under
section 74 will need to be applied in order to establish whether or not Rachel was
consenting. Steve may adduce evidence to the effect that Rachel eventually gave in to
his request. He would argue that this was evidence of her consent, however, Rachel will
argue that her submission did not constitute consent. Section 74 defines consent as
agreeing by choice, with the capacity and freedom to make that choice. The facts here
raise the issue of whether submission amounts to consent or not. The law is not very
clear in relation to submission to sexual intercourse when non-violent demands are
made. In Olugboja, the Court of Appeal held that it was up to the jury to decide whether
there was consent on a case-by-case basis. In McAllister, it was held that the judge was
not required to direct the jury that reluctant acquiescence amounted to consent.
Although these were cases decided before the enactment of the SOA 2003, they follow
the approach adopted today. Consent is a question for the jury and they will receive no
detailed direction on consent from the trial judge. Before deciding whether Rachel in this
scenario agreed by choice, the proportionality between the demands and the act of sex
must be explored. The gravity of the demands must also be considered. It could be
argued that the demands issued here were not sufficiently grave to warrant Rachel
acceding to them. It may be necessary to know a little more about the circumstances of
their relationship. However, on the facts it is likely that the jury will consider consent to
be present, and thus there will be no conviction for rape.

If it is established that Rachel did not consent to sexual intercourse, it must also be
established that Steve did not reasonably believe that she was consenting. Whether a
belief is reasonable is to be determined having regard to all the circumstances,
including any steps Steve has taken to ascertain whether she is consenting (sec.1 (2)),
such as asking her for sexual intercourse, as Steve did here. While the facts show that
Rachel clearly said ‘no’ after his initial request for sexual intercourse, she eventually
gives in to his demands. Thus, even if she was not in fact consenting to sexual
intercourse, Steve may argue that he reasonably believed that she was because she
gave in to his requests for sex. Finally, the issue of conditional consent must be
considered. When Rachel eventually gives in to Steve’s demands for sex, she does so
on the condition that he does not ejaculate inside her vagina. Recent jurisprudence from
the Divisional Court suggests that where a complainant gives conditional consent and
the defendant’s actions go beyond the conditions of that consent, the complainant is
deemed not to have consented. R (F) v DPP, was a case about a woman who
consented to sexual intercourse with her partner on the basis that he would not
ejaculate inside her vagina. The Divisional Court held that the woman’s consent was
negated where her partner ejaculated inside her vagina. The court examined the history
of the relationship between the parties, noting that the woman’s partner was abusively
dominating. The court stated that ‘choice’ is crucial consent. Thus, it might be argued
that Rachel’s consent was negated by the fact that Steve did in fact ejaculate inside
Rachel’s vagina. While this case is only a Divisional Court authority (and thus is not
binding), the principle of conditional consent is supported by the earlier Divisional Court
decision in Assange v Swedish Prosecution Authority in which it was stated that the
prosecution could rely on section 74 to prove that a complainant had not consented to
unprotected sexual intercourse where she consented to sexual intercourse with a
condom.

Thus, Steve could be convicted of the rape of Rachel on the basis that he went beyond
the condition of the consent that Rachel gave.