Evolution of Consent in UK Rape Laws

Introduction

The concept of consent in rape laws and sexual assaults cases always perceive difference notation from different countries. The United Kingdom is no different and the detailed concept of consent has been one of the controversial topics of the United Kingdom for more than two decades now. The controversy around the concept started from the year of 1975 with the controversial amendment to the sexual offences (Amendment) act, 1976, with respect to defendant anonymity and the famous DPP v. Morgan case law of the navy wife is the origin of the muddle controversy of consent in sexual offence in the country of United Kingdom.

Although from the prejudiced judgment passed in the case of Morgan in the year of 1976, the rape laws have reformed a lot and it has provided several amendments in favour of the women including recognizing marital rape, the concept of consent is still not well understood by the jurists and the jurors of the country. Herein we shall critically discuss the historical purview on consent and intoxication and how the concept of consent has evolved through time in respect to intoxication. Further we shall critically discuss the how the 'rape myths' of the country has compromised with the concept of consent under the UK law and how the concept of voluntary intoxication and implied consent has been considered as one under the UK laws in reference to recent case laws herein.

The Concept of Consent in Sexual Assaults – A historical timeline

In the country of United Kingdom, the concept of consent in rape law had no prior existence before the amendment to the Sexual Offences (Amendment) Act of 1976 herein. Before the year of 1975, the concept of consent or mens rea in rape had no proper introduction by the law. If we can dig into the Early England’s law of the land, it could be seen that the concept of rape only applied to virgins women and married women could not implicate rape under the King’s peace. Also, it was also allowed and made legal for the rapists to marry the victim in order to nullify the remarks of rape and under this provision the women had no say to oppose or retract against the rapist whatsoever. In the early 1900’s, the patriarchal mindset of the Great Britain made it extremely harder for the women to prove rape as most of the notable jurists of the land considered rape to be a crime which is hard to prove. Thus, women always struggled to prove creditability before the court of law herein. However, the first trace of accepting the concept of consent in the court of Great Britain started with the case of infamous DPP v. Morgan case where mens rea and consent took a shape.

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1. Sexual Offences (Amendment) Act, 1976, s.1
2. DPP v. Morgan, [1975] 2 All ER 347

Sexual Offences Act, 1956

Sexual Offences Act of 1956 is the first kind of law in the land of Great Britain which recognized rape as a criminal offence. Section 1 of this Act simply defined rape as “unlawful intercourse with a woman.” Not only this Act failed to recognize the essence of consent in a sexual assault but it also omitted the occurrence of marital rape as well.

DPP v. Morgan, [1975] 2 All ER 347

In the year of 1976, the infamous case of DPP v. Morgan took the stage in the subject matter of consent and set a strong precedent which UK followed blindly for the next two decades herein. In this instant case, the concept of mens rea was deducted from the general concept of mens rea in other Criminal offences such as murder, theft or any other felonies and the judgment of Morgan heavily relied on the cases of R v. Tolson and R v. Chisam where the court heavily relied on the concept that “If the defendant had an honest belief that he is not committing a crime, whether or not he had a reasonable ground to hold such a belief”. In the instant case, the court followed the same view and declared that as the defendant had an honest belief that the victim was consenting, the opinion of the victim in this regard shall not be enough to incriminate the defendant with the charges of rape.

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1. Donald A. Dripps, “Beyond Rape: An Essay on the Difference Between the Presence of Force and Absence of Consent” (1992), Vol. 92 COLUM. L. REV. 1780
2. Susan Edwards; “Sexuality, Sexual Offenses and Conceptions of Victims in the Criminal Justice Process” (1983); Journal of victimology, Vol. 8, Issue 3-4, pp. 113-130
3. DPP v. Morgan, [1975] 2 All ER 347
4. Sexual Offences Act, 1956, s.1
5. R v. Tolson, 58 L.J.R. 97 (Cr. Cas. Res. 1889)
6. R v. Chisam , 47 Crim. App. 130 (1963)

Sexual Offences (Amendment), Act, 1976

Although the judgment given in the case of Morgan is a negative implication of consent and rape was distinguished from non-consensual sex on the basis of the honest belief held by the defendant herein, it helped in providing an amendment to the 1956’s Act. The definition of rape was further amended in the Sexual Offences (Amendment) Act, 1976 under section 1 as “unlawful intercourse with a woman, without her consent”.

Unfortunately, post 1976 Act on Sexual Offences herein, the concept of consent essentially followed the footprints of the Morgan Case and several dozens of cases were adjudicated under the concept of “honest belief, irrespective of unreasonable grounds”. In the case of R v. Abraham, it was held that consent is not something to be expressed by the victim but it is rather a question of attitude. In the case of R v. Olugboja, following the grounds of the Morgan herein, it was held that the onus of proving that there was a non-consent to the sexual act offered by the defendant herein, lies on the shoulder of the victim and the defendant does not need to show any reasonable grounds to prove his “honest belief” herein.

Sexual Offences (Amendment) Act, 1992

Following the Helibron Committee Reports and the reports produced by the Criminal Law Revisions Reports, the Sexual Offences Act was further amendment in the year of 1992 where the definition of rape under this act was extended to a larger view of holding ‘non-consensual sex’ as rape and several definition to such proof of non-consent was defined herein. However, in the case of R v. R, marital rape was termed as not rape the courts of the United Kingdom and it was held that as non-consensual sex in marriage is not unlawful in the eyes of law. Also, the same view was held in the case of R v. Clarence, where the court said that, “The sexual communication between them is by virtue of the irrevocable privilege conferred once for all on the husband at the time of the marriage …”

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1. Regina v. Abraham, [1977] 30 C.C.C. (2d) 332
2. Regina v. Olugboja, [1982] 1 Q.B. 320 (Eng. C.A.).
3. Home Office, Helibron Committee: “Report of the Advisory Group on the Law of Rape” (CMND, December 1975)
4. Fifteenth Report of the Criminal Law Revision Committee, Sexual Offences (CMND 9213, April 1984)
5. Sexual Offences (Amendment) Act, 1992
6. R v R [1991] 1 All England Law Reports, 747
7. R v Clarence (1889) 22 QB 23

Criminal Justice and Public Order Act, 1994

Followed by assenting views in several case of marital rape where the conviction of rape could not be held on the view that it did not fulfill the definition of ‘unlawful’ under the Act of 1992, another amendment was brought by the Criminal Justice and Public Order Act of 1994, where the term unlawful was omitted from the Act of 1992 and it was said that marital rape shall also be considered as a valid form of law.

Consent and Intoxication – A Comparative view in reference to case laws and Legal Statues

While the subject matter of consent in rape laws has always struggled in UK, there are some very interesting case laws which exist to prove that intoxication and consent are not two synonymous words in the UK rape law herein.

In the year of 1845, even before the concept of consent and the subject matter of rape could took any constructive structure in the United Kingdom, the case of R v. Camplin, passed an exceptional judgment, which was confirmed in the case of R v. Fletcher, that if the victim was intoxicated at the time of penetration and she did not expressly consented to it, it shall be held as rape and the state of intoxication shall not be equal to giving consent herein. It was held that in the state of intoxication, the victim in no way could consent to the act.

However, the abovementioned case law was only an exceptional instance and it was not followed as a precedent by the courts of the Great Britain. In the paper presented by Heidi Hurd, it was proposed that consent is an action and not intention of the mind. Thus, by the definition of Hurd, consent is not state of mind. However, in the paper presented by Brett, it was said that consent is essentially a state of mind and not just a mindless action. The ideals presented by these two papers are the fundamental point of intoxication and consent and more than often UK has followed the idea presented by Hurd herein.

Intoxication never had a ground in the UK rape law for a long time as the concept of consent did not hold a strong ground under the UK law until the year of 1994 herein. In the year of 2004, a research paper first published the fact that “60% of rape in UK happens post any kind of intoxication whether voluntary or involuntary.”

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1. R v Camplin (1845) 1 Cox 22
2. R v Fletcher (1859) 8 Cox 131
3. Heidi M. Hurd, “The Moral Magic of Consent” (1996); Legal Theory, Vol. 2, p.121
4. Nathan Brett, “Sexual Offenses and Consent”, 11 CAN. J.L. & JURIS. Vol. 69, pp. 69-88

Prior to the finding of 2004, the Sexual Offences Act of 2003 was passed by the Parliament where it was held that if the victim is administered with intoxicated substance without her knowledge i.e. the victim in question should be in a state of being “overpowered/subdued” in order to be recognized under the rape law of the land. Thus, under this act, it was clearly stated that consent in a state of intoxication shall not be considered as a valid consent only if the victim was administered with alcohol or drugs “against her will”. The 2003 Act completely excluded the case of voluntary intoxication and it was implied by the abovementioned Act that a voluntary intoxication shall be equal to a valid consent herein.

The first critical comment was passed on the subject of intoxicated rape in the case of R v. Dougal, where the accused was given acquittal because the court held that the victim’s uncontained and fragmented statement in relation to facts of the case is way too inconsistent and that the victim was drunk at the time of the incident happened.

In the case of R v. Bree, an infamous and well-known judgment was passed in favor of the defendant where the judge passed a remark that “drunken consent is still consent.” It also brought concept of consent in light that has been defined under section 74 of the Sexual Offences Act, 2003 as “freedom and capacity to make that choice.” Also, in the recent development to the subject matter of consent and intoxication, the same concept of Bree was followed in R v. Browmitch and R v. Browmitch, where the court dismissed the plea of the complainant because the complainants were drunk at the time the incident of rape took place and thus, they cannot be relied by their statements. Also, the morality of the girl’s character was questioned and it was held by the jurists and the jurors that intoxicated consent is synonymous to a valid consent and thus it shall not construed as a case of rape herein.

1. Andrea Finney, Home Office, Findings 215: “Alcohol And Sexual Violence: Key Findings From The Research” (2004), Vol. 2
2. Sexual Offences Act, 2003, s. 72(2)(f)
3. R v Dougal [2005] Swansea Crown Court 435
4. R. V. Bree, [2007] EWCA Crim 804, [2007] 2 Crim. App. R. 13
5. R v. Hysa, [2007] EWCA Crim 2056
6. R v. Browmitch, [2012] EWCA Crim 673 [12].

The lack of clarity in consent and intoxication – A critical evaluation of UK’s sexual assault law

As it has been extensively discussed on the subject matter herein, it can be held that the concept of consent and intoxication still lacks clarity under United Kingdom’s recent rape laws and the lack of a clear and concise codified provision on the subject matter is one of the main reasons why voluntary intoxication by the victim is often seen as an easy avenue to consent to an intercourse which would otherwise be held as rape. Even though after several reforms and amendments, the concept of consent has been cleared of any confusion, intoxicated consent still holds a blurry line between consensual sex and rape. And as it has been stated earlier, due to improper conviction in cases of voluntary intoxication, the authentic and tangible rape statistics of the country is still missing and the government works on the rape law reforms based on misleading information provided by several case laws herein.

However, as it had been contested in the case of R v. Bree and R v. Dougal, extreme drunkenness essentially produces inauthentic statement by the victim and it might provide a wide scope for false rape charges within the country. While giving consent under the state of intoxication is morally compromised, according to the court, incriminating consents given under a state of voluntary intoxication might cause harassment towards innocent people and it might also negate the concept of having intercourse in a state of drunkenness which can be problematic in a society with high rate of alcohol consumption. The views of the court in such cases are that unnecessary incrimination of acts shall lead to conviction of innocent people and it might create a false statistics of rape in the country as well.

On the other hand, high rates of acquittal in rape cases in UK also provides a false narrative that the rate of false rape cases are increasing in the country and on the basis of such information, the liberal-democratic government proposed the ancient concept of defendant anonymity to be reinstated in the country’s rape law. Thus, the lack of clarity which is present in cases of intoxication and consent might have the power to dial back to the “rape myths” and it might also give birth to additional grounds for safeguarding defendant against alleged false rape cases.

1. R v Bree [2007] EWCA Crim 256
2. R v Dougal [2005] Swansea Crown Court 435
3. CPS, “Violence Against Women and Girls Report 2018-19” (12 September 2019)
4. Scottish Law Commission, “Report on Rape And Other Sexual Offences” (2007) (U.K.).

The present development in the province of lack of consent in case of voluntary intoxication still lacks clarity. It was held by the report published by the Scottish Law Commission that in order to adjudicate rape in voluntary intoxication, the law of the land should introduce a list of subjects or events which shall provide the jurists and the jurors with an idea of non-consent herein. It provided with a rebuttable presumption that a person, who has consumed alcohol, might lack the capacity to fully express her consent to have intercourse herein. The judgments or decisions held in the cases of Bree and Dougal have provided with a negative implication of the non-consent which is not only regressive but also it reinstates the patriarchal mindset of the society.

Herein, as it has been already stated earlier, a rebuttable presumption in case of voluntary intoxication shall be held. The circumstances of any drunken sex shall be examined that whether or not both the parties agreed to have sex before getting drunk. Even though a discussion with a view to amend the current provision relating to intoxication was raised by the government, it was subsequently voted out. Thus, even if we discuss the positive aspects of the abovementioned case relating to consent and intoxication in rape, a detailed discussion on such decisions shall establish an overall view of the society of the United Kingdom that enables rapists more than the victims. As it has been said that, England still carries the common saying that women are likely to lie about getting raped in order to ruin the reputation of the man of the society. The whole picture only shows how United Kingdom has questioned the creditability of the women pressing charges against men of the society and it has been established several times through opinions given by famous jurists, reports published by several committees e.g. the fifth report of Select Committee on Home Affairs which expressed the view to provide defendant’s in rape cases with anonymity even though such anonymity will obstruct the way of justice and it will cause hindrance in the way of the police force as well. The concept of consent in rape and the subject matter of intoxication in rape are not only sensitive but it go through several social stigma and stereotypes against women as well.

1. Sharon Cowan, (2009) “The Trouble With Drink: Intoxication, (In)Capacity, And The Evaporation Of Consent To Sex”, Rosemary Hunter & Sharon Cowan eds, Routledge
2. Scottish Law Commission, “Report On Rape And Other Sexual Offences “ (2007) (U.K.).
3. Select Committee on Home Affairs; Fifth Report (HC 2002-03,639)

Thus, by critically evaluating the abovementioned legal statues and case laws herein, it can be held that the current rape law i.e. Sexual Offences Act of 2003 should be subjected to certain reforms with respect to the provision of intoxication mentioned under section 75(2)(f) of the Act of 2003 herein. Sex in an intoxicated state shall not be categorized as rape blindly but there should be a rebuttable presumption that in order to incriminate a drunken sex between two parties, there shall be an exclusive ground to prove that there was no prior agreement between the parties to have sex in the near future. Thus, in cases where the parties barely know each other, it shall be presumed that “an extreme drunkenness on the part of the victim shall equal to no consent” herein. Such provision in the codified status shall provide the courts of the country to investigate further in the subject matter of lack of consent owing to voluntary intoxication herein.

Conclusion

In conclusion, it can be said that through several feminist campaigns across the country, the rape law might have reformed a lot but it still needs to go a long way to achieve a sense of perfection. But the rape law still does not have a clear view on consent and voluntary intoxication which is scary for the young people of the country and it also runs the risk of giving unnecessary acquittals to rapists as well The concept that intoxication leads to lack of consent is still untouched by the United Kingdom’s judicial system and it also reflects an overall view of the society as well. The patriarchal mindset of the country still prevails over the heads of the men and women. Thus, in the words of Chambers Goodman, it can be concluded that “silence should not ever constitute a valid consent”. As it can be seen that silence never constitutes a part of valid consent in case of contract law or the medical law, the same should not in rape laws as well. Consent is necessarily a state of mind and not just an action. In better words, consent is a collective form of a particular state of mind which expresses a certain intention through a set of actions. This shall not only clarify the concept of consent in United Kingdom but it shall also negate the provision of voluntary intoxication as well.

Continue your journey with our comprehensive guide to Evaluation of the research on detecting deception and how this relates to practice.

1. Sharon Cowan, (2009) “The Trouble With Drink: Intoxication, (In)Capacity, And The Evaporation Of Consent To Sex”, Rosemary Hunter & Sharon Cowan eds, Routledge

BIBLIOGRAPHY

Journals

Donald A. Dripps, “Beyond Rape: An Essay on the Difference Between the Presence of Force and Absence of Consent” (1992), Vol. 92 COLUM. L. REV. 1780

Heidi M. Hurd, “The Moral Magic of Consent” (1996); Legal Theory, Vol. 2, p.121

Nathan Brett, “Sexual Offenses and Consent”, 11 CAN. J.L. & JURIS. Vol. 69, pp. 69-88

Susan Edwards; “Sexuality, Sexual Offenses and Conceptions of Victims in the Criminal Justice Process” (1983); Journal of victimology, Vol. 8, Issue 3-4, pp. 113-130

Sharon Cowan, (2009) “The Trouble With Drink: Intoxication, (In)Capacity, And The Evaporation Of Consent To Sex”, Rosemary Hunter & Sharon Cowan eds, Routledge

Sharon Cowan, (2009) “The Trouble With Drink: Intoxication, (In)Capacity, And The Evaporation Of Consent To Sex”, Rosemary Hunter & Sharon Cowan eds, Routledge

Case Laws

DPP v. Morgan, [1975] 2 All ER 347

R v. Tolson, 58 L.J.R. 97 (Cr. Cas. Res. 1889)

R v. Chisam , 47 Crim. App. 130 (1963)

R v R [1991] 1 All England Law Reports, 747

R v Clarence (1889) 22 QB 23

R v Camplin (1845) 1 Cox 22

R v Fletcher (1859) 8 Cox 131

R v Dougal [2005] Swansea Crown Court 435

R. V. Bree, [2007] EWCA Crim 804, [2007] 2 Crim. App. R. 13

R v. Hysa, [2007] EWCA Crim 2056

R v. Browmitch, [2012] EWCA Crim 673 [12].

R v Bree [2007] EWCA Crim 256

Regina v. Abraham, [1977] 30 C.C.C. (2d) 332

Regina v. Olugboja, [1982] 1 Q.B. 320 (Eng. C.A.).

Legislations

Sexual Offences (Amendment) Act, 1976

Sexual Offences Act, 1956

Sexual Offences Act, 2003

Sexual Offences (Amendment) Act, 1992

Reports/Others

Andrea Finney, Home Office, Findings 215: “Alcohol And Sexual Violence: Key Findings From The Research” (2004), Vol. 2

CPS, “Violence Against Women and Girls Report 2018-19” (12 September 2019)

Fifteenth Report of the Criminal Law Revision Committee, Sexual Offences (CMND 9213, April 1984)

Home Office, Helibron Committee: “Report of the Advisory Group on the Law of Rape” (CMND, December 1975)

SCOTTISH LAW COMMISSION, “REPORT ON RAPE AND OTHER SEXUAL OFFENCES” (2007) (U.K.).

Scottish Law Commission, “Report On Rape And Other Sexual Offences “ (2007) (U.K.).

Select Committee on Home Affairs; Fifth Report (HC 2002-03,639