Lets set one thing straight from the outset, cases of stranger rape are, I’m pleased to say in my experience, rare.
Sadly the majority of victims know their attackers either as a friend, associate or spouse. This means that the greater proportion of offences that I deal with can come down to consent – the victims word against that of the suspect. This is where all of the extra work to prove a case comes in. Time of reporting after the offence, the medical, injuries, disclosure, forensics, witnesses, corroboration are just some factors in what makes up a comprehensive investigation.
The word consent can be a fall back position for some offenders in the knowledge that it can negate a proportion of the forensic evidence which will support a police prosecution case. If the suspect states that the intercourse was consensual then they may hope that any forensci matter obtained linking them to the offence can be explained away.
Ultimately then there are those matters where it will be one word against the other and it is for firstly the CPS and then potentially a jury to decide whether the consent issue claimed by the defendant is in fact ‘true consent’.
The Sexual Offences Act 2003 has three important provisions relating to consent, which apply to sections 1-4, namely rape, assault by penetration, sexual assault and causing a person to engage in sexual activity. These are:
1. A statutory definition of consent
2. The test of reasonable belief in consent
3. The evidential and conclusive presumptions about consent and the defendant’s belief in consent
Statutory definition of consent
Section 74 defines consent as “if he agrees by choice, and has the freedom and capacity to make that choice”. One question that needs to be answered is whether a complainant had the capacity (i.e. the age and understanding) to make a choice about whether or not to take part in the sexual activity at the time in question. There is no definition of capacity in the 2003 Act.
The question of capacity to consent can be an important issue when a complainant is voluntarily intoxicated to the point of stupefaction at the time of the incident. See R v Bree  EWCA 256
which emphasises the importance of ‘capacity to consent’ in cases when it appears that a complainant has been extremely affected by the voluntary consumption of drink and/or drugs.
Reasonable belief in consent
Deciding whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps one party has taken to ascertain whether the other party consents. The Act abolishes the Morgan defence of a genuine though unreasonably mistaken belief as to the consent of the complainant. It means that the defendant has the responsibility to ensure that the other person consents to the sexual activity at the time in question.
The test of reasonable belief is a subjective one with an objective element which is best dealt with by asking two questions:
(1) Did the defendant believe the complainant consented? This relates to his or her personal capacity to evaluate consent (the subjective element of the test).
(2) If so, did the defendant reasonably believe it? It will be for the jury to decide if his or her belief was reasonable (the objective element).
Evidential presumptions (section 75)
If the defendant did the relevant act, as defined in section 77 and other elements specified in the Act exist and the defendant knew they existed, then the complainant is to be taken not to have consented. One very relevant circumstance highlighted recently is:The complainant was asleep or otherwise unconscious at the time
The above are the definitions and interpretations covered in legislation. What must take a precedent above all of this is the idea that every person, male and female, has the right to say NO and withdraw consent at any point.
If a person states they do not want to engage in or continue some sexual act then that consent has clearly been identified to the other party. Continue and, well rape is a four letter word but a long sentence.