On the meaning of consent in the Sexual Offences Act 2009

There has been a slightly worrying development in Scotland with respect to the interpretation of the new Sexual Offences Act 2009. The Court of Appeal has overturned the conviction for rape of a man who had sex with a woman who was apparently unconscious at the time the intercourse started, and who claims that she withdrew consent immediately she regained consciousness, while the intercourse was still going on.

This is how it has been reported in Scottish Legal News:

The 24-year-old student told the jury that she could not remember how the sex started on account of being intoxicated but subsequently withdrew her consent upon realising what was happening.

Lord Eassie, Lord Brailsford and Lord Philip at the High Court of Justiciary in Edinburgh ruled that Mr Mutebi had a “reasonable belief“ that the woman was a willing partner and on the facts there was not enough evidence to counter that claim.

No force had been used on the woman and it was held her distress the following morning was not sufficient to support a claim that Mr Mutebi knew she did not consent.

While the full judgement has not yet been published, and it may be that when it is the Court will come up with some convincing reasons for this decision, but on the face of it it is puzzling, and seems to run counter to the stated intentions of the Act.

There are two reasons for this. First, under the Act, it is explicitly stated in s.13(2)a) that there can be no free agreement where "where the conduct occurs at a time when B is incapable because of the effect of alcohol or any other substance of consenting to it." So, where a complainer was so drunk that she could not remember how the sex started (and assuming that this evidence is accepted), this by definition must be regarded as rape.

Second, under s.15 it is explicitly provided that consent may be withdrawn at any time, and that if the conduct then continues then it takes place without consent. So, even if the court did not accept the complainer's story about being so intoxicated that she did not know when the intercourse started, if she was a credible witness on the issue of withdrawal of consent, then the intercourse should have been regarded as non-consensual - and the accused could not then be regarded as having a reasonable belief in her consent.

This all seems fairly clear, and was discussed at great length in response to the Law Commission Report recommending reform of the law, the passage of the Act through Parliament and in training delivered to the judiciary preceding the implementation of the Act. So how has it come to this?

My suspicion is that confusion has arisen from two sources - one related to the drafting of the Act, and one more general. 

Under the Act rape is defined in s.1 as:

If a person (A), with A's penis a) without another person (B) consenting and b) without any reasonable belief that B consents penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B, then A commits an offence, to be known as the offence of rape.

Now this is hardly the most lucid piece of drafting around (note that the recklessness appears to refer to the conduct of penetration rather than the state of mind of A), but it seems to require two steps: that the conduct should be without the consent of B, and that A should not have any reasonable belief that B consents. Now the vagueness is this: do the definitions of situations where there can be no consent (in s.13) apply to both steps, or only to the former. In other words, do the situations set out in the Act refer to situations where  a) there is no consent/free agreement, and b) that there can accordingly be no reasonable belief in consent, or do they only refer to the first step, meaning that the Crown would still have to prove the absence of reasonable belief? In my view, it must be the first of these, for otherwise the whole purpose of the law must be undermined. But it appears that the Appeal Court has taken the alternative view.

If this is the case then it gives rise to another problem, which seems to be referred to in the press report, namely that if it is necessary to show the absence of reasonable belief (the state of mind of A), then the Crown must corroborate this somehow. And here the Court has fallen back on the pre-2009 law which has held that the beliefs or mental state of the accused cannot be corroborated by evidence of the distress of the complainer.

So this decision seems to return us to where we were before the Act was passed, as s.13 has been interpreted narrowly, and all the old problems of corroboration then return. And that is surely grounds for concern.