It would be thought that in relation to sexual offences and the issue of consent the issue should be straight forward – yes or no?
As always, life and the law are more complicated than that. The issue of consent is, unfortunately, not so simple.
What is consent?
A person consents if she or he agrees by choice and has the freedom and capacity to make that choice.
Can a drunk person give consent?
Yes, drunken consent is still consent. However, this is where problems can arise. If a person loses their capacity to choose through drink then he or she is not consenting.
Where a person is consenting is frequently the issue in many rape cases. As a result it is often one word against another.
The Courts have given the following guidance as to the issues to focus upon:
- Did sexual intercourse take place?
- Did the complainant consent to sexual intercourse?
- Did the complainant have the freedom and capacity to consent?
- Did the defendant reasonably believe that the complainant was consenting? This consideration will not apply in all cases.
At trial, it will be for the jury to determine issues of capacity and consent having heard all of the evidence.
How do you prove consent?
In the absence of something in writing, and even then, there could be doubts A jury will have to decide the issue having heard all of the evidence.
In some cases, it is not enough for a defendant to simply say that he or she believed the other person was consenting. There must be evidence that he or she had a reasonable belief that there was consent. This would include considering any steps taken by the defendant to ascertain the complainant was consenting.
The situation could also arise where consent is given on condition, for example, that a condom is used. If one is not used, then the “consent” may no longer provide a defence.
There have also been cases where a female has pretended to be a male and had intercourse on that basis. The defendant was guilty because the complainant said that she would not have consented if she had known that the defendant was female.
How can we help?
This article is a brief analysis of potential issues, as you can see this is an area that would require careful assessment and expert advice.
The problem with many alleged sexual offences is that they require a jury to examine intimate factual scenarios, often clouded by drink or drugs, where there is seldom any independent evidence to assist one way or the other.
It is our job to present the strongest case possible. You can read more about how we will prepare your case fro trial here.
To ensure that your defence is properly advanced from the start, you will want to take advantage of our free and independent legal advice in the police station. The advice is free to you no matter what your income. You can read about the advantages of early advice here.
Sexual offences are likely to be heard before the Crown Court. We will always advise you as to your entitlement to legal aid to ensure affordable representation at trial. You can read more about Crown Court legal aid here.
We provide nationwide representation from our offices across the East Midlands. You can find your nearest office here. Alternatively you can use the contact form below.