High Court rejects consent in advance as defence to rape
Consent in advance, at a point "materially remote" from the acts in question, cannot provide a defence to a charge of rape, the Criminal Appeal Court has ruled.
Lord Justice General Carloway, Lord Menzies and Lord Turnbull gave the decision in an appeal from a decision of a preliminary hearing (PH) judge that a special defence referring to prior consent having been given although the complainer was asleep at the time of vaginal penetration could not be read to the jury, and refusing an application under s 275 of the Criminal Procedure (Scotland) Act 1995 to permit evidence to the effect that the complainer had consented to being woken by vaginal penetration as a facet of the relationship.
The special defence lodged narrated that the accused, GW, engaged in sexual intercourse “with the consent of” the complainer, with whom he was in a relationship, and “in any event when [the appellant] reasonably believed her to be so consenting”. Further, “It was the practice of the parties… that on occasion [the appellant] would waken [the complainer]… by penetrating, or attempting to penetrate her vagina with his penis. [The complainer] consented to being awoken in this way”.
On appeal GW argued that where the persons involved were partners, the nature of the relationship, and the patterns of behaviour in it, formed sources of evidence from which a reasonable belief in consent could be inferred in circumstances where the conduct said to constitute rape had occurred when the complainer was asleep. Section 12 of the Sexual Offences (Scotland) Act 2009, which explained "consent" as "free agreement", was silent both on how free agreement was to be expressed and when it was to be expressed. Intercourse whilst the complainer was asleep had been a facet of the relationship and one to which she had consented in advance.
Lord Carloway, giving the opinion of the court, referred to the history of the definition of rape and noted that the Scottish Law Commission, whose recommended provision had been adopted in the 2009 Act, had wanted to make the absence of consent a constituent element of the offence itself, moving away from consent being seen as a defence.
He continued: "The intention of the accused, other than in relation to penetration, ceases to be of direct relevance. The crime is committed if the act occurs without the complainer’s consent. The mental element in the crime, if it arises at all, is restricted to reasonable belief.
"The court agrees with the decision and reasoning of the PH judge, that consent which is expressed at a point materially remote from the conduct said to constitute the crime, cannot provide a defence in terms of the statutory provisions."
The terms of the Act, using the present tense, were clear and "indicative of a need for the consent to be given, in whatever form, at the time of the sexual act and not at a point remote from it". It was equally clear that a person could not consent to conduct while they were asleep or unconscious.
Referring to the "waking embrace", he added: "It would be surprising if the Crown prosecuted such conduct. If they did, and convictions followed, it may be that the legislature would require to amend the Act."
In a postscript referring to the form of the defence, Lord Carloway agreed with the PH judge that "All that should be stated in such a defence is that the complainer consented to the conduct libelled or that the accused had a reasonable belief that she had consented to that conduct. The defence, which is intended only to provide notice to the Crown, should not be used as a vehicle in which to provide the jury with a narrative of the accused’s account of events in advance of, and potentially in the absence of, testimony to that effect from the accused or other witnesses."