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Critically evaluate the definition of consent for the purposes of
sexual offences since the enactment of the Sexual Offences Act
2003, with particular regard to the assumptions in ss.75 and 76.
Introduction:Consent and the need for a clear legal definition
As the clock struck midnight on 1st May 2004, the Sexual Offences Act 2003 came into force
and provided for the first time a statutory definition of consent. Whether the Act be
considered a demonstration of a more advanced understanding of sexual offences than may
be said for the previous 1956 legislation or as a sharper legislative tool designed to ease the
task of the prosecution however is a topic worthy of an entirely separate legal discipline. As
well as protecting or undermining sexual choice, the law of a particular state on sexual
offences also says a great deal about the sexual morality of that state, as well as the extent
to which the shifting cultural and political landscapes of that state have shaped its legal
position on sexual offences.1
This paper will seek to critically analyse the definition of consent provided by the 2003 Act
with particular regard to the evidential and conclusive presumptions outlined under
sections 75 and 76 respectively. Firstly, this paper will critically discuss the precise meaning
of the statutory definition as it appears in the Act before discussing the circumstances under
which sections 75 or 76 may be invoked. Reference will be made to relevant literature and
significant case law which has, despite shedding some light on the complex yet precise
meaning of consent, fallen short of establishing a sufficiently clear legal framework.
Consent under section74: a critical evaluation
Given that a number of the offences under the 2003 Act rely on the absence of consent as a
prerequisite to establish guilt, it is of critical importance that the term be given a clear and
precise meaning2. The full wording of the relevant provision however, namely s.74 of the
Act, simply states that:
1 It is also worth mentioning that such a stance is also likely to influencepolicy and legal developments in other
areas e.g. the legal stanceof that state on prostitution.
2 E. Freer, 'Yes, no, maybe - recent cases on consent and freedom to choose' [2016] 1(1) Archbold Review 6-9.
See also J.R. Spencer, 'Sex by deception' [2013] 9(1) Archbold Review 6-9.

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“…a person consents if he agrees by choice, and has the freedom and capacity to
make that choice”.
The first point to note here is that the complainant gives consent only if he or she ‘agrees’ to
the act. The actus reus of rape for example does not require that the complainant resist or
oppose penetration; therefore intercourse with a woman who is asleep (Lartner and
Castleton3) or a woman so intoxicated that she is unaware of what is happening at the time
of the alleged act (Malone4) constitute the actus reus of rape5. It seems that this provision
was intentionally drafted so as to allow for a broad, far-reaching interpretation of consent.
An example of this broad interpretation may be found in R v The DPP6, when the court
considered a specific incident where the complainant agreed to have sexual intercourse
with the defendant on the condition that he would not ejaculate inside her. In other words,
her consent to the intercourse rested on him keeping his promise. When the defendant
intentionally ejaculated inside her, the court commented:
“She was deprived of choice relating to the crucial feature on which her original
consent to sexual intercourse was based. Contrary to her wishes, and knowing
that she would not have consented and did not consent to penetration if she had
any inkling of his intention, he ejaculated within her vagina. In law, this
combination of circumstances falls within the statutory definition of rape”.7
Secondly, if the complainant is too young or lacks the mental capacity to make a choice then
it will be assumed that there is no consent. In determining whether or not a complainant
3 [1995] Crim LR 75.
4 [1998] 2 Cr App R 447
5 The Court of Appeal has acknowledged however, followingthe decision in Bree [2007] EWCA Crim804, that
even if a victimis drunk she may be able to give (or refuse) consent. This essentially means considering
whether or not the victim’s level of intoxication,with regard to the facts and circumstances of the case,was
such that she losther mental capacity to choose. This is discussed in further detail later.
6 R (on the application of F) v The Director of Public Prosecutions. See also ‘A’[2013] EWHC 945 (Admin).
7 At para 20 - 27. It must be said however that this decision iscontroversial.The court seems to be saying
‘Anything that happens duringsexual intercoursewhich was not previously consented to by the complainant
prior to the intercoursetakingplacewill vitiatewhatever initial consent initially existed and therefore amount
to rape’. If this is to be accepted however, this must surely amount to a conclusivepresumption under section
76. For example, if a complainantagrees to have sex with a defendant on the condition thathe wear a
condom, but at some pointduringthe act the defendant intentionally removes the condom and continues
with the intercourse, then itseems entirely reasonableto concludethat from this pointonwards the
defendant will be committing rape. But whilethis seems unproblematic,and whilefew people would object to
the rulingin R v DPP, the courts must be careful not suggest that there be some kind of considered verbal or
even contractual agreement between two parties before they engage in intercourse in order to determine
what is being consented to and what is not – clearly,such a suggestion would be entirely unrealistic.

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over the age of 16 lacked mental capacity, it is likely that the courts will adopt the definition
provided by the Mental Capacity Act 20058, whereas for children, the court is likely to guide
the jury by referring to the decisions in both Gillick9 and R v H10. Finally, the complainant
must be ‘free’ to make the choice. The leading case here is Olugboja11. In this case, the
complainant did not struggle or resist while the accused had intercourse with her as she was
terrified following another rape by the defendant’s friend. The Court of Appeal emphasized
that it would be for the jury to decide as to whether the victim was consenting, albeit
reluctantly, or submitting12. Indeed, as Dunn LJ put it:
“…there is a difference between consent and submission; every consent involves
a submission, but it by no means follows that that a mere submission involves
consent”.13
The central point here is that even before considering whether or not the circumstances of
the case fall within the criteria under sections 75 and 76, the court will presume that there
was no consent if there was no agreement to the act, no capacity to make the choice or no
freedom to make the choice. However, where the defendant maintains that there is
evidence to suggest either that the complainant consented to the relevant act or that he
reasonably believed that the complainant consented, it will be necessary to consider the
evidential assumptions of consent under section 75. It is to this section that our attention
now turns.
Evidential presumptions under section75: context and
implementation
In an attempt to clarify the definition of consent under the previous provision, section 75
provides a list of circumstances which, if established, will result in there being a
presumption that the victim did not consent to the relevant act. In essence, these are
8 s.2(1)
9 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.
10[2007] EWCA Crim 2056.
11 [1982] QB 320.See also D.W.Selfe, 'The meaning of consent within the Sexual Offences Act
2003' [2008] 178(1) Crim. Law.
12 K. Laird,'Rapistor rogue? Deception, consent and the Sexual Offences Act 2003' [2014] 7(1) Crim. L.R 492-
510.
13 p.332 at para (A).

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questions of fact, not law: it will be up to the jury to decide as to whether these
circumstances existed14.
Without wishing to cite the provision in full, it is sufficient here to say that the
circumstances under which there will be an evidential (and therefore refutable)
presumption of no consent under section 75 are as follows:
 D (the defendant) was using violence against C (the complainant) or causing C to fear
that immediate violence would be done to her or another person15;
 C was, and D was not, unlawfully detained at the time of the relevant act16;
 C was asleep or unconscious at the time of the relevant act17;
 C, because of her physical disability, was not able to communicate to D whether she
consented to the relevant act18, and finally;
 C took, without her consent, or was forced to take, a substance which caused or
enabled her to become stupefied or overpowered at the time of the relevant act19.
To consider the complexities in how consent operates within all of these individual
circumstances is beyond the scope of this essay, and so the following comments will adopt a
more general, overarching approach to analysing consent in regard to section 75.
It has been well established that the absence of any physical injury, such as bruising, does
not imply that the relevant sexual act was consensual. Worryingly however, there is
evidence to suggest that the police, judges, and prosecutors are less likely to accept
allegations of sexual offences (particularly rape) where no violence took place20. It is
startling that complainants have been told that their injuries ‘are not severe enough’ for a
14 J. Temkin and A. Ashworth, "The Sexual Offences Act 2003:(1) Rape, sexual assaults and theproblems of
consent" [2004] Crim.L.R. 328, 344.
15 ss.2(a) and (b)
16 ss.2(c)
17 ss.2(d)
18 ss.2(e)
19 ss.2(f)
20 J. McEwan, 'Provingconsent in sexual cases: legislativechangeand cultural evolution' [2005] 9(1)
International Journal of Evidence and Proof, 1-28.

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criminal trial to proceed21, or to be asked at cross-examination, “Why did nobody hear
screams?”22
Conclusive presumptions under section76
Section 76 sets out conclusive presumptions: if these circumstances exist, then it is
immediately presumed that the victim did not consent. These circumstances are:
“(a) the defendant intentionally deceived the complainant as to the nature or
purpose of the relevant act;23
(b) the defendant intentionally induced the complainant to consent to the
relevant act by impersonating a person known personally to the complainant”.24
To critically discuss both subsections and their related case law is beyond the scope of this
work, and so only a brief comment shall be made here in relation to subsection (b). This
rather straightforward provision is designed to deal with cases where the defendant
impersonates the husband or boyfriend of the complainant. In applying this provision, the
courts are likely to follow the guidance found in the leading case of Elbekkay25. For the
purpose of broadening our understanding of consent in sexual offences however, it is
subsection (a) that we must consider further.
Subsection (a) is intended to address those cases where the defendant deliberately fools the
complainant to attain her consent. For example, in Flattery26, the defendant successfully
convinced the victim, a 14 year old girl with learning difficulties, that he was performing a
medical operation when in fact he engaged in sexual intercourse27. Inevitably however,
there remains uncertainty surrounding what exactly is meant by the ‘nature and purpose’ of
the act; a feature most clearly demonstrated in Linekar28. In this case, the defendant told
21 J. Harris and S.Grace, A Question of Evidence: Investigating and Prosecuting Rape in the 1990s, HORS 196
(Home Office: London, 1999) 21.
22 B. Brown, M. Burman and L. Jamieson, Sex Crimes on Trial: The Use of Sexual Evidence in Scottish Courts
(Edinburgh University Press:Edinburgh,1993) 183.
23 s.76 (2)(a)
24 s.76 (2)(b)
25 [1995] Crim LR 163.
26 [1877] 2 QBD 410.
27 This principlehas been confirmed in more recent caselawtoo. See Williams [1923] 1 KB 340 and B [2006]
EWCA Crim 400.This principle,simply put,states: his deception vitiates her consent.
28 [1995] 2 Cr App R 49.

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the complainant that he would pay her for sexual intercourse. On this condition, the
complainant consented. Immediately after intercourse however, the defendant ran off
without paying. The Court of Appeal ruled that this did not amount to rape on the grounds
that the defendant had not deceived the complainant as to the nature or the purpose of the
act – the complainant had only been deceived as to what would happen afterwards (that
she would be paid).
However, due to the reference in section 76 to ‘purpose’, it seems reasonable to suggest
that Linekar may well have been decided differently had the case arisen after the 2003 Act.
From the complainant’s perspective, the ‘purpose’ of the act was clear: to make money. By
not paying her then, surely the defendant has deceived her as to the purpose of the act?29
Section76: a final note
It must be remembered however that simply because the facts of a case may not fall neatly
within the presumptions under s.76, this does not mean that there is consent. In other
words, the jury will be directed to consider whether or not the victim consented by referring
to the general meaning of that term under s.74. It is worth mentioning however that
feminist legal scholars have questioned whether there exists the capacity for women ‘to
affect and be affected when consent under s.74 is a feeling belonging to the “he”, felt by the
heterosexual penis and endorsed by an institution obviously supporting patriarchy in all its
glory’30. Such remarks provide a clear indication of how cultural, social and political
sentiments influence the legal understanding of consent in accordance with s.74.
29 J. Herring, "Mistaken Sex" [2005] Crim. L.R. 511,particularly atp.517. This rather depends on whether or not
the caseis viewed from a defendant-based or complainant-based perspective.As suggested, the defendant-
based approach is problematic in the sensethat itseemingly excuses a deliberate actof deception providing
that the deception in question relates to something that may or may not happen after the act. The
complainant-based approach however is also potentially problematic in thesense that it may be extending the
interpretation of deception in consent too far.Consider the followingexample: D, C’s boyfriend, suggests that
they have sexual intercourse.C agrees and reasonably believes thatthis is a passionateactdemonstrating
their intense love for one another. However, unbeknown to C, D has already decided that he no longer loves C
and wishes to end their relationship thefollowingday.Has D deceived C as to the ‘purpose’ of the actunder
s.76? The lawremains unclear.
30 N. S. Halal,‘”I havethe freedom and capacity to… Or do I?” Challengingthe Definition of ‘Consent’ under the
Sexual Offences Act 2003’(2015).

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Conclusion
This essay has provided a critical evaluation of the definition and meaning of consent under
s.74 of the Sexual Offences Act 2003 and sought to outline the key questions facing judges
and juries in relation to the presumptions under s.75 and s.76. It has been maintained that
the current definition of consent is complex and is open to a wide variety of interpretations
as the common law develops.
As a final remark, it is notable that the criminal law adopts a strict approach to the
attainment of property via threats, fraud or deception. However where consent to sexual
acts are concerned, it seems that much less is expected31. It remains true that there is a
delicate balance to be struck between protecting the freedom to engage in sexual relations
and the right to be protected from unwanted sexual relations, and it is for these reasons
that the criminal law must seek to establish a clearer legal framework in relation to consent
in sexual offences.
31 J. Herring, Criminal Law (8th ed, Law Masters, PalgraveMacmillan 2013).

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Bibliography
Cases referred to:
‘A’ [2013] EWHC 945 (Admin)
B [2006] EWCA Crim 400
Bree [2007] EWCA Crim 804
Elbekkay [1995] Crim LR 163
Flattery [1877] 2 QBD 410
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Lartner and Castleton [1995] Crim LR 75
Linekar [1995] 2 Cr App R 49
Malone [1998] 2 Cr App R 447
Olugboja [1982] QB 320
R v H [2007] EWCA Crim 2056
R (on the application of F) v The Director of Public Prosecutions
Williams [1923] 1 KB 340
Other documents referred to:
Brown B., Burman M. and Jamieson L., Sex Crimes on Trial: The Use of Sexual Evidence in
Scottish Courts (Edinburgh University Press: Edinburgh, 1993) 183
Freer E., 'Yes, no, maybe - recent cases on consent and freedom to
choose' [2016] 1(1) Archbold Review 6-9
Halal N.S, ‘”I have the freedom and capacity to… Or do I?” Challenging the Definition of
‘Consent’ under the Sexual Offences Act 2003’ (2015) Full PDF available at:
http://www.lse.ac.uk/genderInstitute/pdf/graduateWorkingPapers/noraSelinaHelal.pdf

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Harris J. and Grace S., A Question of Evidence: Investigating and Prosecuting Rape in the
1990s, HORS 196 (Home Office: London, 1999) 21
Herring J., "Mistaken Sex" [2005] Crim. L.R. 511
Herring J., Criminal Law (8th ed, Law Masters, Palgrave Macmillan 2013)
Laird K., 'Rapist or rogue? Deception, consent and the Sexual Offences Act
2003' [2014] 7(1) Crim. L.R 492-510
McEwan J., 'Proving consent in sexual cases: legislative change and cultural evolution' [2005]
9(1) International Journal of Evidence and Proof, 1-28
Selfe D.W., 'The meaning of consent within the Sexual Offences Act
2003' [2008] 178(1) Crim. Law 3-5
Spencer J.R., 'Sex by deception' [2013] 9(1) Archbold Review 6-9
Temkin J. and Ashworth A., "The Sexual Offences Act 2003: (1) Rape, sexual assaults and the
problems of consent" [2004] Crim. L.R. 328, 344