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Sexual Offences
(Lectures on this topic will run for about 5 lecture hours)
(Important note: Bring your Statute Book to these lectures – you will need it!)

Suggested Pre-Reading
From Simester & Sullivan (7th Edn): pp.485-487 (top); §12.6; §12.8; §12.9
 The law must respond to wrongful and harmful sexual misconduct and ensure that sexual
autonomy-a core part of personal identity- is respected
 Sexual Offences Act 2003 (SOA 2003)
o Non-consensual sexual offences:
 Section 1 (Rape)
 Section 2 (Assault by penetration)
 Section 3 (Sexual assault)
 Section 4 (causing a person to engage in sexual activity without consent)
o Elements in common
 Each of the non-consensual offences involves ‘sexual’ conduct
 Involve the absence of the complainant’s consent
 D’s conduct, or (in certain cases) the activity caused by D, must be intended
 Prosecution must prove that D had no reasonable belief that V consented

From Smith, Hogan & Ormerod (15th Edn): §17.1; §17.3.1 (till the bottom of p.787 only); §17.3.3 (the
introduction on p.796 only); §17.3.4 (the introduction on p.797 only)

Important note: We will try to discuss sexual offences in a manner that does justice to the academic
rigour it requires, but you should note that this lecture will inevitably touch upon topics that you
may find disturbing. Remember, the criminal law sets standards for what is (and what is not) a
crime. But the fact that something is not a crime does not suggest that the behaviour was
appropriate. Nothing in these lectures should be taken to imply that. So for instance, listen to this
familiar song and (this time) note the lyrics: https://www.youtube.com/watch?v=tuCO7Kq744U
As we go through this topic, try to make up your mind about whether the man’s behaviour is
criminal, and whether it is appropriate outside of the criminal law. Perhaps you think the answer to
the two questions is different. Or perhaps you think it is the same. Either way, note that the two
questions are different, and their answers need not necessarily always be the same.

*Cite sections EXACTLY as they appear.

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*Sexual Offences Act 2003

*Offences Against the Person Act 1861

1. Three offences (of interest to us) and their elements (other

than consent)
(a) Rape (only a man can commit but can commit on any sex)

s.1(1) SOA:
A person (A) commits an offence if—
a) he intentionally penetrates the vagina, anus, or mouth of another person (B)
with his penis, (conduct)
b) B does not consent to the penetration, and (circumstance)
c) A does not reasonably believe that B consents.

Maximum sentence: Life Imprisonment

 ‘penetrates’
o s.79(2)

 Penetration is a continuing act from entry to withdrawal

 ‘with his penis’-even a surgical constructed one but not a strap on.
o Note also, s.79(3)

 References to a part of the body include references to a part surgically

constructed (in particular through gender reassignment surgery)
 ‘the anus, vagina, or mouth of B’
o Note also, s.79(9)

 ‘Vagina’ includes vulva

R(F) v DPP [2013] EWHC 945 (Admin)
 Complainant consented to sex on the exception that husband did not
ejaculate. He did anyway. CPS wasn’t sure of securing a conviction. But the
case went to court through judicial review.
 mens rea: knowing the defendant did not consent, intentionally penetrating
 actus rea: penetrating vagina, anus, mouth
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(b) Sexual assault

 Statue says that the pronoun he refers to all genders.

 Don’t use the word victim, use complainant

 Sexual assault covers non-consensual, non-penetrative, sexual acts, requiring proof that
D touched V.

 Maximum sentence: 10 years imprisonment

s.3(1) SOA:
A person (A) commits an offence if—
(a) he intentionally touches another person (B),
(b) the touching is sexual,
(c) B does not consent to the touching, and
(d) A does not reasonably believe that B consents.

‘touches’
 s.79(8)
o Touching includes touching-

 With any part of the body

 With anything else
 Through anything
And in particular includes touching amounting to penetration

R v H [2005] EWCA Crim 732 [23]–[26]

Defendant touched the clothes of the complainant and court ruled that it amounted to
sexual assault.

 Where a person is wearing clothing we consider that touching of the clothing constitutes
touching for the purpose of the section 3 offence.
 submits that under section 79(8)(c) touching through anything (through clothing), if
pressure in some form is not brought against the body of the person concerned, cannot be
touching; there has to be some form of touching of the body of the individual who is
alleged to have been assaulted, even if it be through clothing.
 We have no doubt that it was not Parliaments intention by the use of that language to
make it impossible to regard as a sexual assault touching which took place by touching
what the victim was wearing at the time.
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‘sexual’

s.78 SOA:
…penetration, touching or any other activity is sexual if a reasonable person would
consider that—
(a) whatever its circumstances or any person’s purpose in relation to it, it is because R v H
of its nature sexual, or
(b) because of its nature it may be sexual and because of its circumstances or the
purpose of any person in relation to it (or both) it is sexual.

[2005] EWCA Crim 732 at [27]

1) Is this conduct something that may be sexual in some circumstances?
2) Intention

(c) Causing a person to engage in sexual activity without consent

Maximum sentence: Life imprisonment in certain circumstances. Otherwise 10 years
imprisonment if tried on indictment, or 6 months imprisonment if tried summarily.

s.4(1) SOA:
A person (A) commits an offence if—
(a) he intentionally causes another person (B) to engage in an activity,
(b) the activity is sexual,
(c) B does not consent to engaging in the activity, and
(d) A does not reasonably believe that B consents.

‘causing another person to engage in sexual activity’

‘sexual’

2. Consent and Reasonable Belief as to Consent

(a) A first look at consent
 Relevant to actus reus and to mens rea
 A defendant had to believe there was consent and this must be felt by the objective
reasonable third party that there might have been consent. This is enough to raise
reasonable doubt.

‘reasonable
s.74 SOA: belief as to consent’ (the mens rea aspect)
…a person consents if he agrees by choice, and has the freedom and capacity to make
s.1(2)
that (and similar sub-clauses of ss2,3, and 4):
choice.
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.
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*R v B (MA) [2013] EWCA Crim 3 at [24], [35]-[42]

 Defendant made a claim. Dismissed by court and jury.
 Court is discussing what if they believed his claim?
 FACTS of the hypothetical situation. D has sex with V. D believes V has given consent.
(Flirting, kissing, sex). At no stage has D explicitly asked V if V had given consent. D was
careful about reading the signs. V however is petrified and was never consenting. And
any reasonable person would have seen that as well. But D is on the autism spectrum
but he doesn’t know this. So, he has trouble reading the signals.
 Court said no reasonable person would have come to the same conclusion. In law, he
was guilty of rape. Court said this conviction would have been safe even if they believed
his story.
{35} But the Act asks a different question: whether the belief in consent was a reasonable
one. A delusional belief in consent, if entertained, would be by definition irrational and
thus unreasonable, not reasonable. If such delusional beliefs were capable of being
described as reasonable, then the more irrational the belief of the defendant the better
would be its prospects of being held reasonable.

{36} Both the common law and statute law are well used to a rule which judges a defendant
by his subjective state of mind. So, for example, in a case where self-defence is at issue, the
defendant is to be judged according to the facts as he genuinely believed them to be,
whether his belief was reasonable or not, at least unless it was attributable to voluntary
intoxication. Criminal damage, which arises also in the present case, is not committed if the
defendant honestly believes he had (or would have had) the consent of the owner of the
property damaged to do what he did, even if that belief was unreasonable. But the decisive
indication as to the law of rape is, we think, that the Sexual Offences Act 2003 deliberately
departs from this model. It deliberately does not make genuine belief in consent enough. The
belief must not only be genuinely held; it must also be reasonable in all the circumstances.
This was a conscious departure from the former law. Under the former law, a genuine belief
in consent (reasonable or not) was a complete defence to rape; the reasonableness of the
belief was material only as a factor to be considered en route to the decision whether it was
genuinely held: see the Sexual Offences (Amendment) Act 1976.

{40}We conclude that unless and until the state of mind amounts to insanity in law, then
under the rule enacted in the Sexual Offences Act beliefs in consent arising from conditions
such as delusional psychotic illness or personality disorders must be judged by objective
standards of reasonableness and not by taking into account a mental disorder which induced
a belief which could not reasonably arise without it.

Whitta [2006] EWCA Crim 2626

 Section 2 (assault by penetration)
Defendant invited to friend’s house for party. X was a girl there. D and X hit it off. D
and X agreed that once things settled, they would take things further. D and X were
staying over. When it’s dark, D goes to X’s bedroom and starts having sex. He didn’t
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have his glasses (short sight). Wrong bedroom and stuck his fingers in her mom’s
vagina (V). He was charged with section 2. He thought it was the correct room and
he reasonably believed there was consent.
 Acc to statute, you had to have reasonably belief that B was consenting. But mom
was not consenting. D had a reasonably belief that X was consenting. So, he was
convicted

(b) Statutory Shortcuts

s.1(3) (and similar sub-clauses of s3 and s4)

s.75 – ‘Evidential presumptions about consent’, subsection (1):

(1) If in proceedings for an offence to which this section applies it is proved—
(a) that the defendant did the relevant act,
(b) that any of the circumstances specified in subsection (2) existed, and
(c) that the defendant knew that those circumstances existed,
the complainant is to be taken not to have consented to the relevant act unless
sufficient evidence is adduced to raise an issue as to whether he consented, and the
defendant is to be taken not to have reasonably believed that the complainant
consented unless sufficient evidence is adduced to raise an issue as to whether he
reasonably believed it.

s.76 – ‘Conclusive presumptions about consent’, subsection (1):

(1) If in proceedings for an offence to which this section applies it is proved that the
defendant did the relevant act and that any of the circumstances specified in
subsection (2) existed, it is to be conclusively presumed—
(a) that the complainant did not consent to the relevant act, and
(b) that the defendant did not believe that the complainant consented to the
relevant act.

(i) Similarities
‘the relevant act’ – s.77
presumptions regarding consent
only short-cuts – the long-way around is still available

(ii) Differences
Types of presumptions
S76. Conclusive presumptions
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S75. Evidential presumptions

If you can show enough evidence that the V may have consented or D had reason
to believe there was consent, we go back to square one.
Content of presumptions
S75.defendant is taken not to have reasonably believed
S76. did not believe that the complainant consented

(iii) Circumstances

s.76(2):
(2) The circumstances are that—
(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.

*R v Jheeta [2007] EWCA Crim 1699

 Specifies S76 applies only when there is intentional deception by the defendant.
If complainant unilaterally believes that it was person A, not B, S76 will not
apply.
 S76 is game over for the defendant’s team. It is applied narrowly by the courts.
 Difference between me fooling you and you making a mistake on your own.
 Deceptions and non-disclosure (distinction is imp not just in S76)
 Deception must relate to either the nature or purpose of the act.
 There is no legal obligation to disclose.
*R v B [2006] EWCA Crim 2945
Defendant did not tell V that he was HIV+. He was never asked so he did not lie.
What the complainant consented to was sex with D, and that was what happened.
P21 (the fact that D did not disclose)
Court said It was a unilateral mistake that V did not ask.
R v McNally [2013] EWCA Crim 1051

 Vitiating deceptions were not limited to deceptions relating to features of

the offence; that while, in a physical sense, acts of assault by penetration of
the vagina were the same whether perpetrated by a male or a female, the
sexual nature of such acts was different where the complainant was
deliberately deceived by a defendant into believing that the latter was a
male; that, on the facts alleged, M had chosen to have sexual encounters
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with a boy and her freedom to choose whether to have a sexual encounter
with a girl had been removed by the defendant’s deception; that, therefore,
depending on the circumstances, consent to sexual penetration could be
vitiated by a deception by the defendant as to gender; and that, accordingly,
the defendant’s conviction should be upheld
 McNally agreed to R v B but said even if S76 didn’t apply, they could have
ruled S74 could have applied.

A. Deceptions as to nature: s.76(2)(a)

R v Williams [1923] 1 KB 340
 D was a choir master who played at church. Pupil was a young girl. D said
there’s a great way to make you hit high notes. He just had sex with her
which he said was a procedure to create an air passage.
 You must be deceived as to the nature means to the point that you do
not think this is a sexual act
*Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin) at paras
78-90
 Woman said she would have sex with Jullian Assange only if he had sex
with a condom. Does a condom change the nature of the act?
 Court said no as the deception had to be on the relevant act
(penetration)
*R v McNally [2013] EWCA Crim 1051
 FACTS: D was born Justine Mcnally with female genitalia. At the
relevant time, she identified as male. She met V online on a game
with a male avatar. They met for the first time. She was trying to look
male. She insisted on lights being off. And she used a strap on. When
V realized it later, she filed case.
 Court said there was deception but not deception on the nature of
the act. Deception may be on the nature of sexual act
(HETEROSEXUAL OR HOMOSEXUAL) but it still a sexual act. So S76
did not apply.
 S78 says when the nature of an act is ‘sexual’

B. Deceptions as to purpose: s.76(2)(a)

 When we look at purpose, it can be from the defendant and
what we think the complainant thought of the defendant’s
purpose of the act and whether it coincides
R v Jheeta [2007] EWCA Crim 1699
 Jheeta bought a burner phone and started making anonymous
threats and texts. V complained to Jheeta who bought another
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burner phone demanding police protections and another texts. Third

burner. V got angry with Jheeta. V gets text saying that she must
continue to have sex with Jheeta.
 Is this a deception regarding the purpose of the sex that V had to
have with Jheeta?
 Court asked what was the purpose of jheeta? It was sexual
gratification.
 What did V think it was? It was the same.
 Jheeta admitted that V did have sex even when she didn’t want to.
So, he was charged with rape.
 But there was no deception regarding the purpose.

R v Tabassum [2000] 2 Cr App R 328

 Fake examined women’s breasts saying he was medically qualified. There
was deception as the complainants thought it was for medical
examination while D wanted sexual gratification.
R v Green [2002] EWCA Crim 1501
 Doctor ‘examined’ young men and made them masturbate.
*R v Devonald [2008] EWCA Crim 527
 The complainant was a 16-year-old boy who had been in a relationship
with the defendant’s 16-year-old daughter. The daughter was distressed
about the end of the relationship and the defendant took matters into
his own hands. Assuming the identity of ‘Casey’, a 20-year-old female,
he corresponded with the complainant over the internet. As Casey, the
defendant asked the complainant to masturbate in front of a webcam.
The Crown asserted that this was done by the defendant for his own
sexual gratification. The defendant said that he wanted to humiliate the
complainant. The defendant sought the trial judge’s ruling as to whether
the ‘nature or purpose’ presumption in section 76 applied. The judge
ruled that it was open to the jury to conclude that the complainant had
been deceived as to the purpose of the act of masturbation. The
defendant pleaded guilty and appealed. The Court of Appeal agreed with
the trial judge. The court found that the purpose of the act went beyond
the defendant’s own sexual gratification and extended to the sexual
gratification of a 20-year-old female called Casey. The defendant’s
deception about Casey thus went to the purpose of the act. The effect
of this judgment was potentially very wide ranging; how far can and
should the courts enquire into the parties’ purposes in engaging in
sexual activity?
 Offence is S4.
 D’s purpose was humiliation. V thought the purpose was sexual
gratification.
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*R v Bingham [2013] EWCA Crim 823

 In Bingham the defendant made up a personality online – ‘Grant’ – which he
used to contact his own girlfriend. Whilst posing as ‘Grant’ he persuaded his
girlfriend to pose topless. Having obtained the topless images, ‘Grant’
blackmailed the girlfriend into performing sexual acts over a webcam. The
girlfriend eventually went to the defendant who claimed to have physically
assaulted ‘Grant’ and put an end to things. The defendant then posed as
‘Chad’ (a fictitious friend of the fictitious ‘Grant’) and proceeded to blackmail
the girlfriend into further sexual acts over a webcam. The police eventually
traced ‘Grant’ and ‘Chad’ to the defendant. The Crown sought to rely
on Devonald and argue that the s 76 conclusive presumption applied as the
complainant was deceived as to the nature or purpose of the sexual act. The
defence objected but the trial judge ruled in the Crown’s favour. Hallett LJ
giving judgment in the Court of Appeal noted section 76 ‘effectively removes
from an accused his only line of defence’ and ‘it will be a rare case in which
section 76 should be applied’. Further, ‘if there is any conflict between the
decisions in Jheeta and Devonald, we would unhesitatingly follow Jheeta’[9].
In reaching this decision she pointed out that parties to a sexual act may
have very different purposes for what they are doing, and the Act does not
specify whose purpose section 76 refers to. A wide definition for ‘purpose’
risked bringing within the remit of section 76 situations never contemplated
by Parliament. Small comfort for the convicted Mr Devonald (who may have
struggled under s 74 in any event), but a clear decision in favour of fair trials
rather than conclusive presumptions.
 S76 did not apply.

*R v Christopher Matt [2015] EWCA Crim 162 (LEXISNEXIS)

 D managed to get a beautiful actress to perform sexual acts short of
intercourse. As part of the casting process, she had to perform these
acts. V performed these acts for audition. D was charged with sexual
offence.
 V thinks it is pretend sexual gratification whereas D wanted actual
sexual gratification
 The Crown respond to this argument by reliance on sections
74 and 76 of the Sexual Offences Act 2003. As the judge himself
observed in the course of his ruling, the relevant passages are as
follows.

C. In summary on s.76(2)(a)
(I) D intentionally deceives V as to the nature of the relevant act, when D makes
V think that the act is not ‘sexual’ in nature.
(II) D intentionally deceives V as to the purpose of the relevant act, when D
makes V think that his [D’s] purpose in relation to the act is something that is
in fact no part of his [D’s] actual purpose in relation to the act.
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D. Impersonating a person known personally: s.76(2)(b)

R v Devonald [2008] EWCA Crim 527
s75(2):
 Six enumerated circumstances, but rarely useful

(c) The long-way around – s.74

A complainant consents if she:
(i) Agrees by choice,
(ii) Has the freedom to make that choice, AND
(iii) Has the capacity to make that choice.

The concept of choice is important. Choices say a lot about who we are. We are the sum of our
choices. Autonomy (we must have the choice to do what we want). This is at the heart of many areas
of law. At the center of liberal political philosophy, we are responsible for our choices. Positive aspect
is that we get to govern our lives. We get to choose who to have sex with. We choose what to permit
to be done to us.
Sexual autonomy is at the center of s64. What is an agreement by choice? If someone threatens to
kill you if you don’t give your choice and you give your phone, then that is an agreement by choice
unlike if someone picks your pocket.
When you choose, you must be doing something positive. Not choosing can be compatible with not
agreement.
Philosophical background – autonomy (in particular, sexual autonomy)

(i) Agreement by choice

A failure to resist is not agreement
R v Malone [1998] 2 Cr App R 447
 Malone had sex with a 16 year old girl who was conscious and aware of
what was happening. But she was extremely drunk. Defendant argued that
she did not argue.
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 Court said merely failing to resist is not consent. She was too drunk to
communicate consent. It does not imply that she wasn’t consenting either.
It is neutral and difficult to prove. Defendant cannot believe there was
consent on the basis of failure of resistance.
 Absence of resistance is not consent

MC v Bulgaria (2005) 40 EHHR 20 at [157-166]

 ‘Mind the gap’ – Characterizations of ‘the relevant act’
 If you consent to X, but it is actually to Y, then you haven’t agreed by choice to
Y.
 For eg: if you consent to penetration but not ejaculation and ejaculation
happens, then that can be rape.
 If subjectively, things in the act such as wearing or not wearing a condom, the
sex of the person who is penetrating you, is important-then it will play an
important role in assessing the act. How the complainant views the act is
important.
 Israeli case: K had sex with a woman who told him that she would not have sex
with a Muslim. K was born a muslim but he wasn’t devout. After having sex, she
realized he was Muslim and he pleaded guilty.
 If sexual autonomy is important, then we need to give the right to choose
completely.

R(F) v DPP [2013] EWHC 945 (Admin)

Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin) at [86],
[88]
 In our view, therefore, s.76 has no application. The question of consent in
the present case is to be determined by reference to s.74. The allegation is
clear and covers the alternatives; it not an allegation that the condom came
off accidentally or was damaged accidentally. It would plainly be open to a
jury to hold that, if AA had made clear that she would only consent to sexual
intercourse if Mr Assange used a condom, then there would be no consent if,
without her consent, he did not use a condom, or removed or tore the
condom without her consent. His conduct in having sexual intercourse
without a condom in circumstances where she had made clear she would
only have sexual intercourse if he used a condom would therefore amount to
an offence under the Sexual Offences Act 2003, whatever the position may
have been prior to that Act.
 It appears to have been contended by Mr Assange, that if, in accordance
with the conclusion we have reached, the deception was not a
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deception within s.76 (a deception as to the nature or quality of the act

or a case of impersonation), then the deception could not be taken into
account for the purposes of s.74. It would, in our view, have been
extraordinary if Parliament had legislated in terms that, if conduct that
was not deceptive could be taken into account for the purposes of s.74,
conduct that was deceptive could not be. There is nothing in R v B that
suggests that. All the court said at paragraph 21 was:
o “All we need to say is that, as a matter of law, the fact that the
defendant may not have disclosed his HIV status is not a matter
which could in any way be relevant to the issue of consent under
section 74 in relation to the sexual activity in this case.”

R v McNally [2013] EWCA Crim 1051 (despite para 26)

 The court said that agreeing to sex with a male is consenting to being
penetrated with a penis. V agreed to one type of penetration but what
happened was another type of penetration so there was no agreement
by choice.

 Assuming the facts to be proved as alleged, M chose to have sexual encounters

with a boy and her preference (her freedom to choose whether or not to have a
sexual encounter with a girl) was removed by the defendant’s deception.

R v B [2006] EWCA Crim 2945 (para 21)

 All we need to say is that, as a matter of law, the fact that the Appellant may
not have disclosed his HIV status is not a matter which could in any way be
relevant to the issue of consent under s 74 in relation to the sexual activity in
this case.
R v McNally [2013] EWCA Crim 1051 (para 25)
 M thinks its problematic
 S74 does not apply, S76 applied.
 In V’s head, she visualized having sex with a man (J) i.e. a sex with a person
with male genitalia. Did J reasonably believe V consented? J thought of
herself as male and identified herself as male. So she might be behaving
honestly.
 When someone says they are male or female, they can be talking about how
they present themselves to society. Mind the gap analysis- there was no
consent.
 Is it reasonable to think that J reasonably believed that this gap between sex
and gender was important to V?
 If someone had to deceive V to have sex with D, then it may affect consent.
 P25 (CoA) Some deceptions for eg: wealth will not be enough to affect consent.
 An alternative analysis – conditional consent
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 A condition upon which consent depends.

R v Linekar [1995] QB 250

Complaint had agreed to have sex with D for some money. He did not pay money.
CoA said it wasn’t rape. V had the problem that she wasn’t paid not that she had
had sex.
M Dsouza, ‘Undermining Prima Facie Consent in the Criminal Law’ (2014) 33(4) Law
and Philosophy 489

(1) that prima facie consent is undermined when the prima facie consenter’s
autonomy to choose whether or not to consent has been unfairly constrained

(2) that theoretical and doctrinal clarity can be promoted by analysing the factors that
unfairly constrain autonomy in the criminal law using a framework developed in
contract law to determine analogous questions arising in relation to assent to a
contract.

(ii) Capacity to choose (S74-Agreement by choice)

Age of consent
 When you take away someone’s power to consent, you are disempowering
them, saying that they cannot choose. If D has sex with an unconscious
person who he never met before, there was no agreement by choice. You
should only analyze capacity to choose only when it is clear there is
agreement by choice.
 A 13-year old’s consent is imp if D thought and reasonably believed V was 16.
 Under the age of 13, consent doesn’t matter.

Impairment of rational capacities (mental disorders)

R v Lee Gary Brown [2019] EWCA Crim 1030

V was 12, he lied on an online platform saying he was 16. He wanted sexual
encounters. D had Asperger’s and so was unusually trusting. V looked 16. So, it
could have led D to reasonably believe that V was 16. D found out V was younger
when V revealed his age. D then went to the police. He was still convicted of
rape.

R v A (G) [2014] EWCA Crim 299 paras [19], [24]-[29] – ‘visceral rather than
cerebral’
CoA looked at SOA and it looked at S30-Sex with people who have mental
disorders. Statute says the person may not understand the nature of the act and
the consequences of the act. You need to have a basic understanding of what the
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sexual act entails. We presume that there is capacity. If prosecution wants to go

forward with the fact that there was no capacity, there is a high burden of proof
on the prosecution to prove that there was no capacity beyond reasonable
doubt.
Guidance from ss.30 to 33, SOA
Guidance from Mental Capacity Act, 2005, ss.2 and 3 (guidance)

s.2(1) MCA:
 Stan
…a person lacks capacity in relation to a matter if at the material time he
dard of
is unable to make a decision for himself in relation to the matter because
proof
of an impairment of, or a disturbance in the functioning of, the mind or
brain.
s.3(1) MCA:
a person is unable to make a decision for himself if he is unable—
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the
decision , or
(d) to communicate his decision (whether by talking, using sign language
or any other means).

applicable
 Impairment of rational capacities (transient factors including intoxication)

R v Bree [2007] EWCA Crim 804

 D and V were drinking together in a group and became very intoxicated. V
was more intoxicated. D took her to her room and cleaned her and went
back to check on her. D didn’t want V to choke on her vomit. D started to
comfort her. He said V encouraged him and they had sex. D did not ejaculate
as there was no condom. V didn’t remember much. She remembered some
of it like going to washroom but not cleaning up. She doesn’t remember not
consenting.
 The fact that you can’t remember something doesn’t mean you were
unconscious. Memory loss is not the same as being unconscious. Drunk
consent is still consent. The standard is very high in saying that someone
who was drunk did not have the capacity.
 16

(iii) Freedom to choose

Choice is a representation of who we are, our autonomy and we need to be
adequately free to make that choice.
R v Jheeta [2007] EWCA Crim 1699 [29]
There was no freedom of choice as she felt pressured by the ‘police officer’. S72 (a)
R v Bingham [2013] EWCA Crim 823 [24]
 Same analysis as before. It was only because she felt pressured to do these
acts. However, he was not convicted. Blackmail affected her agreement of
choice
 “If the complainant only complied because she was being blackmailed, the
prosecution might argue forcefully she did not agree by choice”
 Adequately free is enough: because there is always a pressure, but it can still
be your choice.
*R v Olugboja [1982] QB 320 (pre 2003 Act)
Two men D and L met two young women V and K. They get friendly and they offer to
drop them home, but they drive them to L’s house. D went to the bungalow. L raped V in
the car. He brought both women back to the bungalow. L raped K. D tells V he wants to
have sex. V doesn’t want to, but he tells her to take off her trousers. V did not scream,
cry or resist. D said she never resisted; she took of her trousers voluntarily. They were
convicted. CoA said consent lies on a spectrum. There can be unenthusiastic consent. If
you resist, they may beat you up, so you consent, that is not consent rather it is
submission. The difference is the pressure that is felt. If you feel you are free enough to
consent, then you have freedom to consent.
S Gardner, ‘Appreciating Olugboja’ (1996) 16 Legal Studies 275
R (Monica) v DPP [2018] EWHC 3508 (Admin), paras 55-58. (notorious)
*R v Kirk [2008] EWCA Crim 434
Court said she clearly didn’t feel free enough to choose. She felt pressure: she was
cold, homeless and hungry. D knew that these pressures existed.

3. Further Reading on Policy Questions

A Sharpe, ‘Criminalising sexual intimacy: transgender defendants and the legal construction of
non-consent’ [2014] Crim LR 207

Always look at the mens rea and actus rea elements of s 73/4/5??