Sexual Offences – Rape, Sexual Assault & Consent

When it comes to sexual consent, it’s vital to understand exactly what is consent and what isn’t. Without this knowledge, sexual offence cases can arise, which can carry severe legal penalties.

What Is Sexual Assault?

In the UK, sexual assault crimes are defined as the sexual penetration or touching of an individual, or a person touching your sexual organs, without reasonably believing that consent was given, as outlined in the Sexual Offences Act 2003 (“SOA”). This involves intentional touching or penetration of another person where they did not give consent. This includes touching over clothing and of clothing. It also includes offences where a person engages in activity with another’s sexual organs against their will, or if they are a child.

For individuals accused of rape or sexual assault, and for those seeking to understand their rights and protections, the law surrounding sexual consent requires careful explanation, as it can be very complex and depend not only on the accounts of the complainant and the accused, but also surrounding evidence.

There are many factors affecting consent of the person making the allegation and whether the person accused had a reasonable belief in the consent of the person making the allegation.

Ambiguous behaviour, silence, or hesitation cannot be relied on to mean consent has been given. Consent that is given to one sexual act does not mean it is transferrable to another and this includes the same sexual act done in different circumstances to those agreed to (e.g. sex without a condom after sex with a condom was agreed).

Sexual assault can occur without the presence of physical harm or injury; it is defined by the absence of consent. For example, if a victim is asleep or threatened in any way to perform sexual acts, this is still defined as sexual assault.

What Is Consent?

Sexual consent is an agreement between people to engage in sexual activity. Consent should be freely given and clearly communicated, and can be withdrawn at any time. To ensure an in-depth understanding of what constitutes consent, you can refer to its definition stated in s74 of Sexual Offences Act 2003.

There are key factors to ensure consent is given and received, but most importantly, the individual must actively consent from their own will and have the capacity to do so. For example, someone who is under the legal age of consent is incapable of consenting.

Alternatively, consent cannot be given if, at any time during the incident, they were deemed unable to make a decision due to brain functioning impairments, in accordance with the Mental Capacity Act 2005.

Similarly, someone who is intoxicated can provide consent R v Bree (2007); however, this depends on the level of intoxication at the time of the incident. For more information regarding intoxication and consent, please see the McArthur’s Solicitors guide or the Crown Prosecution Service chapter 6.

Sections 1-4 of the Sexual Offences Act 2003 provides that for a sexual assault conviction, the individual must have intentionally committed a sexual act without consent, and did not reasonably believe that the individual consented. Some such acts are as follows:

Rape
Assault by penetration
Sexual assault
Causing a person to engage in sexual activity (non-penetrative)
Causing a person to engage in sexual activity (penetrative)

Other issues about consent

There are conclusive (i.e. cannot be overturned) presumptions (in s.76 SOA) that the complainant did not consent to the act AND the accused person did not believe that the complainant consented to the relevant act where the accused person intentionally deceived the complainant as to the nature or purpose of the relevant act or induced the complainant to consent by impersonating someone else. These cases are rare but effectively deprive accused persons of the most common defences to sexual offences.

There are also evidential presumptions (i.e. can be overturned by the evidence) about consent and reasonable belief in consent (s.75 SOA) where violence is used or threatened, or the complainant was unlawfully detained, asleep, unconscious, disabled or drugged. The effect of this is that the accused person has to have some actual evidence suggesting either the circumstances were not applicable, though because this is an evidential presumption, the prosecution still have to prove that consent was not given or that the accused did not have a reasonable belief in consent (see below).

How do we know if there was consent?

Ideally, sexual consent should be given explicitly (verbally or otherwise), and participants can ask for consent verbally to ensure there are no grey areas. Where either or both people are drunk, or under the influence of drugs, then the circumstances and how they met will be important, as will evidence such as:

The complainant’s own evidence as to the circumstances.
What the accused says or doesn’t say in interview.
Witness statements from other people
Recent complaint (i.e. from a complainant to a friend or other person before a report to the authorities) about a sexual offence having been committed.
CCTV footage from bars, clubs, or taxis showing behaviour and awareness levels.
Medical reports indicating blood alcohol levels or other substances.
Phone messages and social media exchanges before or after the event.
Previous sexual history of the complainant is rarely allowed

Reasonable Belief in Consent

Under the Sexual Offences Act 2003, a defendant may have a defence against sexual offences (e.g. Rape, Sexual Assault, etc) if they reasonably believed the other person was consenting. The test is both subjective (what the defendant believed) and objective (whether that belief was reasonable in the circumstances).

The courts will look at:

Whether the complainant’s behaviour could reasonably be interpreted as giving consent.
Whether the defendant took active steps to ensure consent was given (for example, asking, checking, or observing signs of agreement).
Whether alcohol was involved (see below).

The acquittal of sexual assault allegations can be based on whether the individual reasonably believed they received consent during the sexual act. This includes specific steps taken to gain consent by the other individual.

Alcohol and Drugs and Sexual Offences

Please see our separate article about this (link).

Both consent and reasonable belief in consent can be affected by consumption of alcohol or drugs by either the complainant, the accused, or both. Drunken consent can still be consent (R v Bree [2007] 2 Cr. App. R. 13); but even in the absence of explicit evidence of not consenting, generally cases should go to the jury to decide (R v H [2007] EWCA Crim 2056). In some cases extreme inebriation of the complainant may result in all defences not being available (e.g. where the person making the allegation was asleep after drinking too much then a judge could rule that the defence of believing the defendant had a reasonable belief in the victim’s consent could be withdrawn from the jury – R v Ciccarelli [2012] 1 Cr. App. R. 15). However, again, in general the issues of capacity and consent are for juries to decide.

What sentences are there for a sexual assault allegation?

The Sentencing Council has specific guidelines in place that outline the average sentences for a range of sexual assault charges. These are to provide an overview of what may be imposed upon an individual if convicted of a sexual assault, contrary to the Sexual Offences Act 2003.

Cases involving consent and alcohol are treated very seriously by the police and courts. Depending on the offence, conviction for sexual assault can result in:

A lengthy prison sentence
Registration on the Sex Offenders Register
Sexual Harm Prevention Orders.
Damage to reputation, career, and personal relationships

See our article on sentencing for sexual offences for more detail on the guidelines.

Also note that sentencing for an attempt is on the same level as for the actual completed offence.

How McArthur Solicitors Can Help

If you need further information or expert legal advice on rape and sexual assault cases, contact McArthur Solicitors today on enquiries@mcarthursolicitors.co.uk or 020 4587 4583.

Our team has a wealth of experience in defending allegations of sexual offences, and understands the stress those accused face when beginning to fight their case. We offer comprehensive, end-to-end support for our clients, and can take over your case even if you have representation already. Our experienced sexual offence solicitors provide:

Expert legal advice on the law around sexual consent
Robust defence strategies, tailored to the evidence and circumstances
Support and confidentiality throughout the legal process
Court representation from specialist advocates
Evidence gathering from multiple sources (the earlier we are instructed, the more likely it is that we can discover material).

Whether you are facing investigation or prosecution or simply want clarity about your rights under UK law, we are here to help.

Get in touch with us for an initial consultation to understand how we can help you.