Practical exercise (14.5.2)

Original essay for you to proofread

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Assess the extent to which consent enables a defendant to avoid liability for sexual offences under the Sexual Offences Act 2003. Critically evaluate whether the current law is appropriate.
Word Limit: 1200 words

The Sexual Offences act 2003 contains two distinguishable types of offences: those that require consent and those that do not. Rape is an offence which requires consent. There are other offences, which are designed to specifically protect particularly vulnerable victims, that do not require any consent such as those dealing with sexual contact with victims under the age of 16 and those involving victims suffering from mental disorders (section 30). In these offences, if the offence does not specify that it has to be committed without the victims consent, then consent cannot provide a way for the defendant to avoid liability.
The offences under the Sexual Offences Act 2003 which require the consideration of consent are fewer in number than those that don’t require consent and these include rape (section 1), assault by penetration, sexual assault, causing a person to engage in sexual activity without consent and voyeurism. Voyerism is a new offence introduced for the first time but the Sexual Offences Act 2003. It is a straightforward offence. Under section 67 of the Sexual Offences Act 2003, part of the mens rea of the offence is that the defendant knew that he did not have consent for his actions.
Consent is defined by section 74 as ‘a person consents if he agrees by choice and has the freedom and capacity to make that choice’. The concept of a ‘reasonable belief in consent’ is integral to the mens rea of the offences under the Sexual Offences Act 2003 that have consent as an element. Consent has a role in both the Actus Reus and the mens rea of these offences.
The actus reus is always the same. It requires that the victim did not consent to the actions of the defendant whether this is intercourse (rape: section 1), assault by penetration or sexual activity (sexual assault). If the victim did consent to the action, the defendant is able to avoid liability but not because he has ‘got away with it’ but because he is not guilty. A consensual act is not one that can attract criminal liability if the absence of consent is a part of the actus reus. This can be contrasted with the offences that have no constent requirement, such as intercourse with a person under the age of 16 as here the defendant will be liable even if the victim gave enthusiastic consent or was the instigator of the intercourse because the law does not recognise such consent in order to protect the victim. Therefore, it is not that consent allows the defendant to avoid liability for rape and other offences that require the absence of consent but that the definitional elements of the offence are not satisfied and the defendant has committed no offence.
It is important to remember that intercourse is a continuing act. This definition of intercourse is provided by the Sexual Offences Act 2003 and adopts the definition that was given in case law under the old law that preceded the Act. This means that if the victim changed her mind part of the way through intercourse and withdrew consent, the intercourse becomes non-consensual and the actus reus of rape is satisfied. The defendant must respect the victim’s wishes.
As I said earlier, consent requires free choice and sections 75 and 76 provide more affective guidance on how consent is to be dealt with when choice is not free as a result of factors listed in these sections. Section 76 contains conclusive presumptions. This means that if the circumstances listed in section 76 exist then there is no consent at all and this presumption cannot be rebutted but exists as a fact. Section 76 applies if the defendant has deceived the victim about the nature of the act or about his identity in order to obtain consent. This means that their was consent present but that it does not count because of the way that the defendant obtained that consent such as lying about who he is or about what the act involves. In these circumstances, consent does not allow the defendant to avoid liability as it is not counted as valid.
Section 75 creates evidential presumptions about consent. This means that if any of the circumstances listed in the section exist, it is presumed that the victim did not consent and that the defendant did not have a reasonable belief in consent but it is open to the defendant to deduce evidence to rebut this presumption. Instead of there being a presumption that the defendant is not guilty and the prosecution have to prove that he did rape the victim, there is a presumption that he is guilty and he has to prove that he did not rape the victim. This can be quite an onorous burden. The sorts of things that trigger the presumptions are if the victim is asleep or unconscious or is a prisoner or violence is used against her. It is difficult to see how the defendant will convince the court that the victim gave consent to intercourse when she is asleep. Here, it is not so much that consent enables the defendant to avoid liability but that he has to prove that consent exists by arguing against the presumptions.
This brings me to the idea of ‘reasonable belief in consent’. This is part of the mens rea of the offences that require consent. This means that not only does it have to be proven that the victim did not consent for the actus reus of rape but also that the defendant did not have a reasonable belief that she was consenting for the mens rea. This is quite a change from the old law. If a defendant wants to argue that he had reasonable belief in consent, he must explain what steps he took to check whether the victim was consenting. If the answer is ‘none’ then it is likely that his belief is not reasonable as it will not be based on evidence that he could have obtained if he took the trouble. This means that it is not just the actual physical presence of consent that enables the defendant to avoid liability for rape but his beliefs about whether or not there is consent so it is no wonder that the law has changed to require a reasonable belief rather than the old Morgan style honest belief or that there is a requirement that the defendant does something to check whether his belief is well-founded.
In conclusion, it seems that consent can allow the defendent to avoid liability because if an offence requires a lack of consent but consent is actually given by someone who is legally permitted to give consent then the offence is not made out It is all a bit more complicated in relation to mens rea because here the victim does not actually consent but the defendant thinks that she has which creates a bit of a paradox because the victim has been raped because she has had intercourse that she does not want forced upon her but the defendant is not guilty of rape because he thought that she was consent. Overall, that does not seem particularly satisfactory.
Word count: 1197 words

Annotated version of essay

Take a look at the essay and see if you can find the proofreading errors within it.

Assess the extent to which consent enables a defendant to avoid liability for sexual offences under the Sexual Offences Act 2003. Critically evaluate whether the current law is appropriate.
Word Limit: 1200 words

The Sexual Offences act¹ 2003 contains two distinguishable types of offences: those that require consent and those that do not. Rape is an offence which requires consent. There are other offences, which are designed to specifically protect² particularly vulnerable victims, that do not require any consent such as those dealing with sexual contact with victims under the age of 16 and those involving victims suffering from mental disorders (section 30). In these offences, if the offence does not specify that it has to be committed without the victims³ consent, then consent cannot provide a way for the defendant to avoid liability.
The offences under the Sexual Offences Act 2003 which require the consideration of consent are fewer in number than those that don’t⁴ require consent and these include rape (section 1), assault by penetration, sexual assault, causing a person to engage in sexual activity without consent and voyeurism. Voyerism⁵ is a new offence introduced for the first time but the Sexual Offences Act 2003. It is a straightforward offence. Under section 67 of the Sexual Offences Act 2003, part of the mens rea of the offence is that the defendant knew that he did not have consent for his actions.
Consent is defined by section 74 as ‘a person consents if he agrees by choice and has the freedom and capacity to make that choice’. The concept of a ‘reasonable belief in consent’ is integral to the mens rea⁶ of the offences under the Sexual Offences Act 2003 that have consent as an element. Consent has a role in both the Actus Reus⁷ and the mens rea of these offences.
The actus reus is always the same. It requires that the victim did not consent to the actions of the defendant whether this is intercourse (rape: section 1), assault by penetration or sexual activity (sexual assault). If the victim did consent to the action, the defendant is able to avoid liability but not because he has ‘got away with it’ but because he is not guilty. A consensual act is not one that can attract criminal liability if the absence of consent is a part of the actus reus. This can be contrasted with the offences that have no constent⁸ requirement, such as intercourse with a person under the age of 16 as here the defendant will be liable even if the victim gave enthusiastic consent or was the instigator of the intercourse because the law does not recognise such consent in order to protect the victim. Therefore, it is not that consent allows the defendant to avoid liability for rape and other offences that require the absence of consent but that the definitional elements of the offence are not satisfied and the defendant has committed no offence.
It is important to remember that intercourse is a continuing act. This definition of intercourse is provided by the Sexual Offences Act 2003 and adopts the definition that was given in case law under the old law that preceded the Act. This means that if the victim changed her mind part of the way through intercourse and withdrew consent, the intercourse becomes non-consensual and the actus reus of rape is satisfied. The defendant must respect the victim’s wishes.
As I said earlier⁹, consent requires free choice and sections 75 and 76 provide more affective¹⁰ guidance on how consent is to be dealt with when choice is not free as a result of factors listed in these sections. Section 76 contains conclusive presumptions. This means that if the circumstances listed in section 76 exist then there is no consent at all and this presumption cannot be rebutted but exists as a fact. Section 76 applies if the defendant has deceived the victim about the nature of the act or about his identity in order to obtain consent. This means that their¹¹ was consent present but that it does not count because of the way that the defendant obtained that consent such as lying about who he is or about what the act involves. In these circumstances, consent does not allow the defendant to avoid liability as it is not counted as valid.
Section 75 creates evidential presumptions about consent. This means that if any of the circumstances listed in the section exist, it is presumed that the victim did not consent and that the defendant did not have a reasonable belief in consent but it is open to the defendant to deduce¹² evidence to rebut this presumption. Instead of there being a presumption that the defendant is not guilty and the prosecution have to prove that he did rape the victim, there is a presumption that he is guilty and he has to prove that he did not rape the victim. This can be quite an onorous¹³ burden. The sorts of things that trigger the presumptions are if the victim is asleep or unconscious or is a prisoner or violence is used against her. It is difficult to see how the defendant will convince the court that the victim gave consent to intercourse when she is asleep. Here, it is not so much that consent enables the defendant to avoid liability but that he has to prove that consent exists by arguing against the presumptions.
This brings me¹⁴ to the idea of ‘reasonable belief in consent’. This is part of the mens rea of the offences that require consent. This means that not only does it have to be proven that the victim did not consent for the actus reus of rape but also that the defendant did not have a reasonable belief that she was consenting for the mens rea. This is quite a change from the old law. If a defendant wants to argue that he had reasonable belief in consent, he must explain what steps he took to check whether the victim was consenting. If the answer is ‘none’ then it is likely that his belief is not reasonable as it will not be based on evidence that he could have obtained if he took the trouble. This means that it is not just the actual physical presence of consent that enables the defendant to avoid liability for rape but his beliefs about whether or not there is consent so it is no wonder that the law has changed to require a reasonable belief rather than the old Morgan style honest belief or that there is a requirement that the defendant does something to check whether his belief is well-founded.
In conclusion, it seems that consent can allow the defendent¹⁵ to avoid liability because if an offence requires a lack of consent but consent is actually given by someone who is legally permitted to give consent then the offence is not made out It is all a bit more complicated in relation to mens rea because here the victim does not actually consent but the defendant thinks that she has which creates a bit of a paradox because the victim has been raped because she has had intercourse that she does not want forced upon her but the defendant is not guilty of rape because he thought that she was consent. Overall, that does not seem particularly satisfactory.
Word count: 1197 words