Essay Plan: "The concept of consent has proved resistant to legislative clarification, leaving the core element of the most serious sexual offences hopelessly uncertain. Discuss."

Essay Plan: "The concept of consent has proved resistant to legislative clarification, leaving the core element of the most serious sexual offences hopelessly uncertain. Discuss."

Introduction

• Focus: Analyse how the legal concept of consent, especially in the context of sexual offences, has been resistant to clear legislative definition, leading to uncertainty in legal outcomes.

• Thesis: The legal concept of consent remains hopelessly uncertain due to its resistance to precise legislative clarification, particularly in areas such as intoxication, deception, and the failures of section 76 of the Sexual Offences Act 2003.

• Section 74 and Intoxication:

◦ Key Legislation: Section 74 of the Sexual Offences Act 2003 defines consent as agreeing by choice, with the freedom and capacity to make that choice.

◦ Case Law:

▪ R v Bree (2007): Sir Igor Judge ruled that drunken consent is still consent, introducing the idea of a "grid system" to determine when intoxication negates consent.

▪ R v Hysa (2007): Contradicted Bree in the same year, illustrating the inconsistency in the law's approach to intoxication and consent.

◦ Issue: The law remains uncertain because the threshold for when intoxication negates consent is unclear, leading to varied interpretations in similar cases.

◦ Recklessness: Despite the 2003 Act's attempt to eliminate recklessness as a basis for criminal liability in sexual offences, it appears to be creeping back into considerations of consent.

◦ Academic Commentary:

▪ Kessler and Weston criticise the inconsistency and uncertainty, arguing that the law fails to provide clear guidance on when intoxication invalidates consent.

Paragraph 2: The Failures of Section 76

◦ Key Provision: Section 76 of the Sexual Offences Act 2003 creates a conclusive presumption of no consent in specific circumstances, such as when the defendant deceives the victim about the "nature or purpose" of the act.

◦ Case Law:

▪ Assange v Swedish Prosecution Authority (2011): Demonstrated the application of section 76 when a victim was deceived about the use of a condom, leading to a conviction.

▪ R v DPP (2014): Held that non-consensual ejaculation was sufficient for rape, adding another layer to the interpretation of section 76.

▪ R v Lawrence (2020): Complicated the application of section 76 by ruling that lying about a vasectomy does not negate consent, narrowly distinguishing it from Assange.

◦ Issue: The law is hopelessly uncertain because section 76's scope is inconsistent, with courts struggling to apply the "nature or purpose" test uniformly.

◦ Impact: The varying interpretations of what constitutes deception under section 76 create unpredictability in legal outcomes, undermining the law's reliability.

Paragraph 3: Further Failures of Section 76

• Gender Deception and Section 76:

◦ Case Law:

▪ R v McNally (2013): The defendant was convicted of assault by penetration for failing to disclose her gender identity, raising questions about the application of section 76 to cases of gender deception.

◦ Academic Criticism:

▪ Herring and Joan McGregor argue that section 76's vagueness leads to over-broad applications, where the law struggles to clearly define what constitutes "deception" in sexual offences.

◦ Effect of Vagueness:

▪ The law’s reliance on vague terms like "nature" and "purpose" leaves it open to interpretation, making it difficult for courts to apply the law consistently.

◦ Conclusion: Section 76's inability to provide clear guidance on deception leaves the law in a state of uncertainty, where similar cases can have vastly different outcomes.

Paragraph 4: Improvements over the 1956 Act

• Comparison with the Sexual Offences Act 1956:

◦ Previous Law: The 1956 Act did not define consent, relying instead on recklessness as a basis for criminal liability in sexual offences.

◦ Advances in the 2003 Act:

▪ The 2003 Act removed the recklessness standard, attempting to clarify consent by introducing terms like "choice," "freedom," and "capacity."

▪ London Borough of Southwark v KA (2016): The court attempted to clarify the capacity to consent, emphasising the need for understanding the mechanics of the act, pregnancy, health risks, and the concept of consent itself.

◦ Issue: Despite these improvements, the new terms are so vague and general that they may have created more problems than they solved, leading to continued uncertainty in defining consent.

◦ Argument: While the 2003 Act represents an improvement, its vague terminology and inconsistent application still leave the concept of consent in an unsatisfactory state.

Conclusion

• Summary: The concept of consent in sexual offences law remains resistant to clear legislative clarification, resulting in uncertainty in areas such as intoxication, deception, and the application of section 76.

• Final Argument: Despite improvements over previous legislation, the law’s current stance on consent remains inconsistent and unpredictable, rendering it hopelessly uncertain and in need of further refinement to ensure fairness and clarity.

Sample Paragraphs

The resistance of a definition to consent has led the law hopelessly uncertain which can be demonstrated through the failings of section 76. This was established by the 2003 Act as a way to set out the circumstances under which it will be conclusively presume there was no consent. However, it is important to note that it is note setting out the only circumstances where they can find consent. One condition that we will discuss is that the defendant has to intentionally deceive the victim as to the ‘nature or purpose’ of the act. This Act changed the original wording of ‘nature or quality’. Its application can be presented in the Assange v Swedish Prosecution Authority 2011 case where the victim agreed to have sex if the defendant wore a condom. The defendant did not wear one and he was convicted because the victim was deceived as to the ‘nature’ of the act. This case highlights its effectiveness in finding no consent. However, as these words are open to interpretation, this has led to uncertainty regarding its scope. In R v DPP 2014, it was held that non-consensual act of ejaculation was enough for rape. Its scope was really challenged in the recent case of R v Lawrence 2020. This case involved the defendant who said he had a vasectomy (which was a lie) to the victim. They had sex and she became pregnant. The question that was posed to the court was whether a lie about fertility could negate consent. They held that it couldn’t and narrowly distinguished Assange on the basis that this case is to do with the risk/consequence of sex, whereas Assange involved the physical performance of sex. This inconsistent trail of case law highlights how the law is hopelessly uncertain and that the definition of consent has been refused to be revised despite the issues presented above. 

The concept of consent, though its major concerning issues aforementioned, is an improvement from the previous 1956 Sexual Offences Act which didn’t have a definition for consent. Under section one of this act, the defendant will be charged with rape if they know that the person does not consent, and reckless as to whether the person consents or not. The use of the word ‘reckless’ renders an unnecessarily wide scope and the 2003 Act had effectively removed that requirement. However, their definition of consent, using the words such as ‘choice’, ‘freedom’ and ‘capacity’ are so vague, general and controversial in their meanings that they may have caused more problems than it has solved. The case of London Borough of Southwark 2016 specifically detailed the requirements of having the capacity to consent. The court stated that the victim must understand: the mechanics of the act, that it can lead to pregnancy, the health risks and understand the concept of consent. Although it has resisted legislative clarification, the courts have tried to add elements of specificity and clarity to consent. However, we do not want to be too specific in trying to define the concept because as sexual activity can be very context-specific and cases of involving sexual activity while intoxicated aren’t rare, the law should not be too eager to define the concept. However, its current stance is inconsistent which ultimately renders the le lege ferenda ‘hopelessly uncertain’.