Essay Plan: ‘Over the past 15 years, legislation and case law has succeeded in clarifying the meaning of consent as a key element of sexual offences.’ Discuss.
Introduction
• Focus: This essay evaluates whether recent legislation and case law have clarified the meaning of consent in sexual offences.
• Thesis: Despite legislative changes and recent case law, the concept of consent remains unclear due to persistent ambiguities and inconsistencies in legal definitions and interpretations.
Paragraph 1: Section 76 and Deception
• Argument: The introduction of Section 76 aimed to clarify situations where deception negates consent, but it has not fully resolved issues.
• Legislative Framework:
◦ Section 76: Provides that consent is not valid if obtained through intentional deception about the nature or purpose of the act.
• Case Law Examples:
◦ R v Jheeta (2007): Focused on deception regarding the nature of the act but did not fully resolve ambiguity.
◦ R v Devonald (2008): Expanded the scope of deception but was later contradicted by R v Bingham (2010), which reverted to the earlier position of Jheeta.
◦ Analysis: Changing the term from “nature or quality” to “nature or purpose” did not significantly enhance clarity. The application of these terms remains situation-specific, leaving unresolved issues about what constitutes valid consent.
Paragraph 2: Nature or Purpose of Consent
• Argument: The legal definition of deception related to the "nature or purpose" of the act remains problematic, leading to further confusion.
• Case Law Examples:
◦ R v Assange (2011): Focused on deception about condom use, highlighting the difficulties in distinguishing between physical performance and risk/consequence.
◦ R v Lawrence (2020): Differentiated between deception about physical performance and risk, further complicating the application of consent.
◦ Impact: These cases show that while Section 76 addresses deception, it fails to resolve the underlying ambiguities, leaving the law in an unpredictable state.
Paragraph 3: Intoxication and Section 74
• Argument: Section 74’s definition of consent has not effectively addressed issues related to intoxication.
• Case Law Examples:
◦ R v Bree (2007): Addressed consent in the context of intoxication but upheld that drunken consent is still valid.
◦ R v Hysa (2007): Contradicted Bree by holding that intoxication could vitiate consent.
◦ Igor Judge: Criticised the "grid system" for being unfair and leaving the law in an uncertain state.
◦ R v Kirk (2008): Added confusion with the term "willing submission," complicating the understanding of consent.
◦ Discussion: Intoxication remains a contentious issue, with conflicting case law further muddling the legal concept of consent.
Paragraph 4: Impersonation and Section 76
• Argument: Section 76’s handling of impersonation cases reveals ongoing ambiguities about consent and identity.
• Case Law Examples:
◦ R v McNally (2013): Involved a case of deception about gender, resulting in a rape conviction based on loss of freedom to choose.
◦ R v Monica (2018): Concerned a police officer's undercover identity, where the victim's claim of impaired choice was not upheld.
◦ Analysis: The distinction between identity and attributes remains unclear, leading to inconsistent outcomes and further confusion about consent. Jonathan Herring's guidance on consent over identity versus attributes illustrates the fine line that complicates legal interpretations.
Conclusion
• Summary: Despite recent legislative efforts and case law developments, the meaning of consent in sexual offences remains ambiguous and inconsistent.
• Recommendation: A more precise definition of consent is needed, particularly concerning deception, intoxication, and impersonation. Clearer legislative and judicial guidelines could enhance legal certainty and fairness in sexual offences.
Sample Paragraph
The case law in the recent decade has not sufficiently clarified the meaning of consent and this can be shown through the cases on impersonation under s.76. A comparison between the McNally 2013 case and the Monica 2018 will demonstrate this point. In McNally, the defendant (woman) met someone online who she thought was a man called ‘Scott’. After they had sex, it was revealed that Scott was in fact a female. The court convicted the defendant of rape because the victim would not have consented if she knew the defendant’s true gender. The victim was deprived of her ‘freedom to choose’ under s.74. However, in Monica, the defendant was a police officer who was working undercover in activist groups. He struck up a relationship with one of the activists and when his identity was revealed, the victim brought up the argument that she was deprived of her ‘freedom of choose’. The court held him not guilty. These two cases highlight the complexities in understanding when and how consent will be found. Jonathan Herring’s guidance that there has to be consent over identity but not an attribute. However, there is usually a very fine line between the two. Could someone’s ethnicity amount to an identity? And if it can, could the defendant be charged with rape if they had lied about their ethnicity? This highlights the tricky business and how the phrase ‘freedom to choose’ is confusing and creates uncertainty. The last fifteen years, it is possible to argue, that the legislation has caused more problems than it has solved.