Consent

Consent, or a reasonable belief in consent, is a defence to varios sexual offences charged under the Sexual Offences (Scotland) Act 2009.

It is not possible in law, in most circumstances, to defend against a charge of assault by arguing that the alleged victim consented to being attacked. For more detailed discussion of this point, see the page on assault.

The following, on consent, is taken from the page on rape.

“Consent” in the Sexual Offences (Scotland) Act 2009

“Consent” is defined in s12 of the 2009 Act as “free agreement”. s13 goes on to set out what free agreement does not mean:

s13

Most of the circumstances in s13(2) are self-explanatory. s13(2)(a) means that consent cannot be given when the complainer is incapacitated through drink or drugs. “deception… as to the nature or purpose of the conduct” in s13(2)(d) might be A deceiving B that penetration is as part of a legitimate medical procedure.

s14 provides that an unconscious person (whether asleep or otherwise) cannot consent:

s14

This point was explored in more detail in the following recent case:

GW v HMA [2019] HCJAC 23

  • The appellant had been charged with raping a sleeping woman.
  • He appealled against the refusal to allow him to lead evidence that the woman consented to sex on the basis that it was a facet of their relationship that he would occasionally wake her up by vaginally penetrating her. 
  • It was argued on behalf of the appellant that, in the context of a continuing relationship (as opposed to a one off encounter), reasonable belief in consent could arise from “the patterns, accommodations and negotiations in the relationship” [paragraph 15]. In this way, the complainer had consented to this sexual activity in advance.  
  • The appeal was refused. The court held that section 14 of the 2009 Act is clear. Taken with s15(2) [see below], “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” [paragraph 27].

s15 provides for the scope of consent, and for the effect of its withdrawal:

s15

s15 in particular emphasises that ensuring consent is an ongoing obligation (e.g. consent to a kiss, or oral sex, does not mean that consent to vaginal intercourse should be assumed). It also emphasises that a withdrawal of consent during penetration must be immediately acted upon.

A “mentally disordered person” is deemed to be incapable of consenting to sexual acts. This is covered by s17:

s17

Reasonable Belief

The absence of reasonable belief in consent is an essential part of the crime of rape, and must be proven by the Crown. Section 16 of the 2009 Act reads as follows:

s16

HMA v Graham [2017] HCJAC 71

“[T]he absence of a belief, of some description, has always been a requirement, at least in the sense that the accused has to have the requisite criminal intent. That is an essential part of many crimes, but it does not, as such, require separate formal proof. It is an inference drawn from facts (such as the use of force) themselves proved by corroborated evidence.” [Lord Justice-General Carloway at paragraph 23]

Consent (or reasonable belief in consent) is classed alongside special defences such as self defence or alibi, in the sense that advance notice of it must be intimated to the Crown.

A standard formation for the notice might be: “[accused’s name] pleads not guilty to the charge on the indictment and, specially and without prejudice to said plea, states that the sexual activity referred to in the charge, took place with the consent of [complainer] and with the accused’s reasonable belief that she so consented.”