House of Commons - Home Affairs - Appendices to the Minutes of Evidence

Select Committee on Home Affairs Appendices to the Minutes of Evidence

APPENDIX 18

Memorandum submitted by JUSTICE

INTRODUCTION

1. JUSTICE is a British-based, all-party, law reform and human rights organisation. It seeks greater fairness, effectiveness and the advancement of human rights within the legal system. JUSTICE works through policy-orientated research; interventions in court proceedings; education and training; briefings; lobbying and policy advice. It is the British section of the International Commission of Jurists. This briefing builds on a briefing submitted to some members of the House of Lords before the Second Reading of the bill.

2. JUSTICE welcomes much of the reform in the Sexual Offences bill. The law has developed in a piece meal fashion, sometimes by legislative amendment and sometimes through the common law, reflecting more or less accurately the changing attitudes of society. The result is a need for a coherent structure in relation to both the definition of offences and sentencing. There is a need for change to take into account modern attitudes, for example in relation to child abuse, homosexuality and appreciation of the harm caused by sexual abuse. JUSTICE largely supports those elements in the bill designed to address these issues.

3. The proposal to expand the definition of rape to include penile penetration of the mouth is sensible. Non-consensual oral sex should be regarded as the serious offence it is, and constitute rape rather than indecent assault. We support the continuing distinction between penile and non-penile penetration, [36]despite the obvious lack of gender neutrality, the former offence being distinguishable by virtue of the risks of disease and pregnancy. JUSTICE supports the creation of a new offence of non-penile penetration, whether by part of the body or by an object. Presently such conduct must be charged as indecent assault, which in many cases will not adequately reflect the gravity of the conduct. Redefining the offence of indecent assault is also welcome.

4. JUSTICE supports the definition of consent being included in legislation. [37]Juries are charged with the often-difficult task of deciding whether the complainant was consenting. A definition in legislative form will assist judges to explain, and juries to understand, precisely what is meant by this concept. Including those circumstances where the common law has deemed that consent does not exist in legislation is also a sensible codification of the law. [38]However, we do have concerns as to the use of conclusive presumptions in relation to situations where consent is given by a third party, [39]where there was intentional deception as to the nature and purpose of the act, or impersonation of a person known to the complainant. [40]Irrebuttable presumptions in relation to a vital element of such a serious offence may offend the presumption of innocence in an unacceptable way, even in these situations where, it must be conceded, it will be most unlikely that a defendant could have believed the complainant was consenting.

5. JUSTICE welcomes the abolition of the offences of gross indecency and buggery, which target homosexual activity and are blatantly discriminatory against gay men. [41]This will also remove the rule that "an act of buggery by one man with another shall not be treated as taking place in private" if more than two persons were present. [42]We would urge that the government undertake a "tidying up" of the Sexual Offenders' Register to delete the names of those on it by virtue of a conviction for one of these offences that involved consensual activity.

6. The replacement of laws that applied to sexual activity in public that apply only (or predominantly) to gay men, with a non-discriminatory offence of sexual activity in public is also welcome. [43]Care may be needed in relation to the definition of a "public place".

7. JUSTICE welcomes the extension of the protection of sexual assault law to those who have undergone gender reassignment surgery, by including surgically constructed body parts in the definition of "parts of the body".

THE DEFENCE OF HONEST BELIEF IN CONSENT

8. This section of the briefing will concentrate on the vexed question of whether the defence of an honest but unreasonable belief in consent should be changed to require the belief to be a reasonable one. This is perhaps the most controversial issue in the bill. Opinions were divided amongst those advising the Sexual Offences Review; amongst those who responded to the review; and, indeed within the council of JUSTICE. It will briefly discuss the current law here and in other jurisdictions, and the various reports and studies that have led up to the proposal contained in the bill. It will point out some of the difficulties that the bill's proposal may occasion and suggest that the Canadian model, as recommended by the Sexual Offences Review, may be a more appropriate solution.

9. A stream of research and political argument has increasingly challenged older assumptions about the fairness both of legislation and practice in relation to sexual offences, particularly from the point of women who are so often (though not always) the victims. The treatment of victims in rape trials has raised considerable controversy and the limits of acceptable cross-examination have been a subject of some debate. The current position is contained in the Youth Justice and Criminal Evidence Act 1999. It should be noted, however, that the Human Rights Act 1998 has allowed the courts to consider the fairness of these provisions and further to alter the boundaries. [44]

10. A debate has raged for some time on whether the law should proceed further in protecting victims of sexual assaults by requiring more thorough examination of a defence that involves arguing that the defendant believed the complainant consented to the sexual activity. At present, a jury essentially looks at whether a defendant honestly believed that the complainant consented (a subjective test). The bill proposes that a jury looks at whether a defendant's belief was, in all the circumstances, reasonable (an objective test). The logical result of this latter test is that a defendant could be convicted of a non-consensual sexual offence, such as rape or sexual assault, even though he honestly and actually thought the other party was consenting to the sexual activity in question. In other words, he would have no guilty intention or, in the Latin of lawyers, no mens rea. This is a major step forward in the law and Parliament needs to be sure that it has fully understood and explored the consequences.

The Current Law

11. Rape is defined by s. 1 of the Sexual Offences Act 1956 as sexual intercourse[45] knowing that the person does not consent or being reckless as to whether there is consent. An honest belief that the complainant was consenting is a defence, [46]regardless of the reasonableness of that belief. The reasonableness or otherwise of a belief in consent is evidence merely of whether the belief was genuinely held. So held the House of Lords when the issue was first considered[47] in DPP v Morgan. [48]

12. This decision was controversial and was described by some as a "rapist's charter". As the Sexual Offences Review noted:

Many in the legal world accepted that it was a clear statement of the necessary guilty mind (mens rea) for rape and a logical expression of the subjectivism necessary for guilt. Whereas to others it was evidence that no matter what the victim said or did, however violated she was, there was no crime of rape. [49]

13. The Heilbron enquiry and its subsequent report[50] that followed in response to the controversy generated by Morgan concluded that the principle in relation to the mental element was correct but that there should be clarification of the significance of "reasonableness" in the legislation. This resulted in s 1(2) of the Sexual Offences (Amendment) Act 1976, which declares that the presence or absence of reasonable grounds for the belief that the other party was consenting are matters to which the jury may have regard in considering whether a defendant did so believe.

Arguments for and against change[51]

14. Arguments for retaining the subjective test, as established in Morgan, include:

mens rea

Morgan:

. . . to insist that a belief must be reasonable to excuse is to insist that the accused is to be found guilty of intending to do that which in truth he did not intend to do, or that his state of mind although innocent of evil intent, can convict him if it be honest but not rational. [52]

— Defendants should be judged on the facts as they believed them to be, and should not be criminalised because they made a mistake. This proposal could do just that. If someone was negligent as to consent, ie mistaken and not reasonable on an objective test because they did not exercise sufficient care, they would be liable to conviction and imprisonment for life. Liability at this level of seriousness should be based only on intent or recklessness, and not on the basis of strict liability or negligence.

— Insisting that a belief be reasonable is applying a standard external to the defendant, and begs the questions of whose standard of reasonableness is to be applied, and how is it to be applied.

— The rate of conviction for rape may drop further than it already is. If there was a rule of law that, however honest a belief, the jury had no option but to convict in the absence of reasonable grounds for it, a perception of unfairness might arise, which might result in fewer convictions than were the jury left themselves to judge whether an assertion of belief is genuine or just a fanciful story unworthy of belief.

15. Arguments for changing to an objective standard include:

— The fact that an unreasonable belief can exonerate by implication authorises the assumption of consent, regardless of the views of the victim or whatever they say or do. Women who do not consent to intercourse should not have to see their assailants go free because of their unreasonable beliefs or attitudes about women. A subjective test encourages adherence to the outdated myth that women enjoy being overborne by a dominant male and that "no" really means "yes".

— The mistaken belief arises in a situation where, by definition, the parties are in close proximity to each other. Placing an onus on a person to ensure that their partner is consenting, with the risk of prosecution if they do not so ensure, is not disproportionate given the harm to the other person that results from non-consensual sex. The respected academic commentator Professor Jennifer Temkin explained this idea as follows:

— Limits on eliciting evidence of a woman's previous sexual history in the Youth Justice and Criminal Evidence Act 1999 are undermined because raising the honest belief defence will make relevant, for example, what an accused had heard about a woman's reputation. The real issue should be what the accused did to ascertain whether she was in fact consenting.

16. The following potential scenarios, as identified by Professor Temkin, indicate the difficulties in following Morgan because in each case the accused may entertain an unreasonable belief that the complainant is consenting, and may therefore be acquitted. However, few people would doubt that the belief is inherently unreasonable, and should not result in an acquittal.

Morgan

— A woman explicitly states that she does not consent and attempts to resist. The defendant, because of his superior strength, is able without much force to overcome her. He, believing women always behave in this way, interprets her "no" as "yes" and her resistance as token;

The Law Commission Reports

17. The Law Commission examined this issue in some detail in its Consultation Paper of 1995. [55]In discussing whether change was warranted it commented on Lord Simon's reference in his dissenting judgment in Morgan to the need for the law to strike a fair balance between the victim and the accused, and noted that the balance might not necessarily be struck exactly where it is under present law. Referring to the scenarios identified by Professor Temkin, the Consultation Paper stated "it would be remarkable if the Morgan rule did not sometimes have the effect of encouraging the jury to accept a bogus defence". However, it went on:

The difficulty is that the end cannot justify the means. There might be fewer rapes if the crime was easier to prove, but this cannot justify making it so much easier to prove that there is a risk of convicting men who in fairness do not deserve to be convicted. A serious criminal offence must always be so defined to ensure that it can be committed only by a person who is seriously culpable. [56]

18. The Consultation Paper did consider that there was a case for requiring a man to address his mind to whether the woman consents. It further considered there was a case for not allowing a positive belief in consent to be a defence in every case—this would depend upon the cogency of a defendant's reasons for believing the complainant was consenting where obviously she was not. Where, for example, his belief was based on what he had been told by a third party or on his view that "no" meant "yes", "he must take the consequences" of conviction. [57]It did, however:

stress that mere negligence, in the sense of failing to realise what a reasonable man would have realised, could not possibly suffice to found criminal liability. At the very least it would have to be proved that the woman's lack of consent was not just perceptible to a reasonable man but obvious, and that the defendant himself was capable of understanding that she did not consent.

19. The Consultation Paper therefore sought views on establishing criminal liability for rape where the defendant did not realise the person was not consenting but the fact of non-consent should have been obvious to him. Although Professor Temkin considered that the proposal, with its simplicity, had much to commend it, it falls short of specifically requiring any effort on the defendant's part to ascertain consent even in situations where there can be no excuse for failing to do so. A man who has sexual intercourse with a non-protesting woman, having been assured of her consent by a third party, should be obliged to ascertain this for himself. His liability should not depend on whether or not she was able in the circumstances to demonstrate her lack of consent. [58]

20. However, the Law Commission's report to the Home Office Sex Offences Review declined to recommend any change to the objective test, stating:

It has been suggested that a defendant should only have a defence to rape if his belief in the victim's consent is based on reasonable grounds. This raises the issue where society should hold the balance between the interests of the victim of sexual intercourse without her consent and the man's criminal liability for that act where he did believe that she was consenting. This is not a debate upon which it is appropriate for this Commission to have a view.

The law … accords with the principles upon which criminal liability for serious crimes has habitually been fixed in England and Wales (the "Golden Thread").

Where it is sought to derogate from this principle and to seek to establish criminal liability for rape on some or other degree of negligence, our view, as a principle of law reform, is that it must be demonstrated by the proponents of such a departure that it is necessary to remove a serious shortcoming in the way the law is applied in the courts.

21. It recommended that the Sexual Offences (Amendment) Act 1976 be strengthened by requiring that judges further assist juries in deciding whether an asserted belief in consent may be true by two additional directions: firstly, that the jury should have regard to whether the defendant availed himself of an opportunity to ascertain whether the victim consented; secondly, failure to appreciate a victim might not consent is no defence if this belief is caused solely by the defendant's voluntarily intoxicated state.

Comparative Law:

AUSTRALIA

22. The difference of opinion as to whether a mistaken belief in consent need be reasonable is manifest in the two approaches taken by the Australian states. In the states[60] that retain common criminal law there is a subjective Morgan test of mens rea, so that an honestly held but unreasonable belief in consent will lead to acquittal.

23. In the "Code states",[61] where criminal law is based a code adopted in the 1920's, an objective standard of reasonableness is applicable to the belief. The prosecution need only prove that the physical act of the accused was voluntary, intentional and occurred without the consent of the other party—it does not have to prove any fault element. [62]The defendant may plead mistaken belief in consent but the belief must be reasonable before it will provide a defence. [63]If this defence is asserted the prosecution must prove beyond reasonable doubt that the belief did not exist, or if it did, it was not based on reasonable grounds. [64]

24. In the common law state of Victoria there has been wide-ranging reform of sexual offences law. [65]The concept of consent has been redefined as "free agreement" to sexual activity. A list of circumstances where free agreement is absent as a matter of law is set out, reflecting those situations as identified by common law case law. These reforms are similar to those proposed by the Sexual Offences bill in relation to the definition of consent. A series of mandatory jury directions is set out in the legislation, designed to disabuse the jury of antiquated ideas in relation to sexual assault (eg that a person is not to be regarded as having freely agreed just because they did not protest or sustain physical injury) and women's sexuality (eg that the complainant freely agreed on this occasion because on an earlier occasion she had freely agreed to engage in sex with the defendant or another). The subjective test is preserved and modified, as it is here, with a mandatory jury direction that "in considering the accused's alleged belief that the complainant was consenting to the sexual act, [the jury] must take into account whether the belief was reasonable in all the relevant circumstances".[66] As Simon Bronitt, lecturer in law at the Australian National University, wrote:

A further judicial qualification often incorporated into the direction is the requirement that the accused's mistake must be "honest and genuine". Although the qualification is doctrinally redundant (the defendant is mistaken or simply lying, in which case he is not mistaken), it encourages the jury to apply a sceptical eye to claims of mistaken belief in consent. Guidelines are a common juridical device to encourage juries to apply commonsense scepticism to claims of "I believed she was consenting", whilst simultaneously paying lip service to individual justice and the central importance of mens rea. One could accuse the law of having its subjectivist cake and eating it! [67]

25. The Modern Criminal Code Report[68] is the product of a recent federal government initiative to produce a code to which all states can subscribe in the interests of uniformity of the criminal law throughout Australia. It also proposed defining consent as free agreement and listing the circumstances in which consent does not exist. In relation to mistaken belief in consent it decided, on balance, to adopt the common law subjective Morgan test. The Report referred to a 1991 Victorian study[69] which demonstrated that the subjective test did not operate to prevent convictions in many cases where the defence was raised. It concluded that the educative role of the law in relation to appropriate sexual behaviour could be achieved not by changing the subjective fault element, but instead by introduction of a statutory definition of consent, and mandatory jury directions, as in Victoria. [70]It referred to the submission of a state police force that expressed its approval of the subjective test, stating that in its experience jurors would not accept the defence of belief in consent unless it was based on reasonable grounds. [71]

CANADA

26. Reform of the substantive law of rape in Canada in the early 1990's introduced a statutory definition of consent as "voluntary agreement", along with a list of circumstances where it is absent. The reforms preserve the mens rea requirement but restrict the circumstances in which an accused can rely on mistake as to consent.

27. Section 273.2 of the Canadian Criminal Code provides that the defence may not be relied on where it arises from his self-induced intoxication, recklessness or wilful blindness, or where the defendant "did not take reasonable steps in the circumstances known to him at the time to ascertain that the victim was consenting".

28. A further requirement, developed by case law, is that the belief should have an "air of reality" about it, requiring that the accused be able to point to some evidence justifying the belief, or some support arising from the circumstances, before the defence may even be left to the jury. This test is echoed by the legislative requirement that only if the judge is satisfied that there is evidence to constitute the defence is the issue left to the jury, which must then be instructed to consider the presence or absence of reasonable grounds for the belief. [72]As Professor Temkin points out, the courts here have anticipated the Canadian jurisprudence to an extent by ruling that a Morgan direction need not be given in all cases and that there must be room for mistake to have arisen from the circumstances as described by the complainant and defendant. [73]

Sexual Offences Review Recommendation

29. Based on the Canadian Code, the recommendation of the Sexual Offences Review is designed to make it much harder to run a dishonest defence of belief in consent by limiting its, rather that abolish the subjective test entirely.

30. The Review recommended that:

A defence of honest belief in free agreement should not be available where there was self-induced intoxication, recklessness as to consent, or if the accused did not take all reasonable steps in the circumstances to ascertain free agreement at the time. [74]

31. This proposal would place limitations on the use of the defence of belief in free agreement, but it would continue to be available in cases where it is genuinely relevant. So, for example, where a defendant did take reasonable steps to ascertain that the other party agreed and he honestly believed that she did, but despite this the jury accepted that the other party was not consenting, the defence would be available to him.

32. Although not removing the Morgan defence entirely Professor Temkin prefers this recommendation to that of the Law Commission as it "would preclude the Morgan defence not merely where the defendant was drunk as in the Commission's proposal, but also where he failed to take reasonable steps to ascertain consent and where he was reckless." [75]Applying this approach to the three scenarios listed above[76] she writes that the defence may not fail in the absence of judicial directions that make clear that a defendant is to be considered reckless as to consent where there has been no communication of consent by the victim herself (as opposed to by a third party), or where the defendant's belief was based on knowledge of her sexual history. "It would be necessary for the judges to make it clear that a belief that she would consent is not evidence of a belief that she did consent". The redefinition of "consent" to mean "free agreement" is of significance in relation to the third scenario where a victim, so terrified because the defendant has broken into her house, is unable to register her non-consent. To prove lack of belief in free agreement would present a less onerous evidential burden for the prosecution than to rebut a belief in consent allegedly arising from the lack of protest. [77]

The Government Response and Sexual Offences Bill

33. The government noted in its response to the Sexual Offences Review that of 86 responses received 38 agreed with its recommendations and 48 disagreed and/or proposed an alternative. The government stated:

We are not satisfied that this recommendation, as it stands, would provide adequate protection for victims. It is not clear what "all reasonable steps" would involve and whether determining if a defendant's belief was reasonable would necessarily entail whether he took reasonable steps. We propose instead the following test:

Where the prosecution can prove that there was room for uncertainty about the complainant's consent and the defendant did not do what was reasonable in the circumstances to ensure that the complainant was willing to take part in sexual activity, the offence will be proved'. [78]

34. Clause 1 of the Sexual Offences Bill redefines the offence of rape. Under its provisions, a person commits an offence if he intentionally penetrates the vagina, anus or mouth of another with his penis and the other party does not consent, where he does not believe there is consent or is reckless, [79]or if a reasonable person would in all the circumstances doubt whether the other party consents and he does not act in a way that a reasonable person would consider sufficient to resolve that doubt. [80]

35. This proposal would create a completely objective test in two parts. First, whether a "reasonable person" would, in all the circumstances, doubt there was consent. Secondly, whether a "reasonable person" would consider the steps taken by the accused were sufficient to resolve the doubt. A genuinely mistaken defendant, who had not taken objectively sufficient steps to resolve any objectively existing doubt, a doubt that he in fact may not have entertained, would be liable to conviction. In effect, the Morgan "defence" would be abolished, and it would be possible to convict a person of a very serious offence on the basis of negligence.

36. The proposal would appear to be based on a combination of the Law Commission proposal on obviousness of non-consent (where a reasonable person would doubt whether the complainant consents), and Professor Temkin's requirement that the defendant be required to ascertain consent (the defendant did not act in a way a reasonable person would consider necessary to resolve the doubt), with the relevant test for each being that of the objective "reasonable person" (see paragraph 19 above).

37. The first limb of this test is open to the criticism that there are greatly different degrees of doubt, and which "reasonable person's" standard is to be applied. It is possible that a very prudish person would believe there was doubt about consent in a great deal more circumstances than a particularly liberal one. A better formulation might be that there was a doubt as to consent on "reasonable grounds".

38. What would a reasonable person consider sufficient to remove the doubt? Is it simply that the person asked whether the other was consenting, is non-verbal communication enough, or is more required? What type of reasonable person is postulated—is it someone of the same age, sex, level of intelligence or ethnicity of the defendant, or is it to be a hypothetical reasonable person? This question has traditionally proved very difficult to answer in the context of the defence of provocation. [81]There is every reason to believe that similar and equally difficult debates will have to occur in relation to this issue. The Australian Model Criminal Code Report pointed out that the adoption of an objective test may have little positive effect on notions of proper conduct and consent, and could introduce further difficulties. The Report quotes Simon Bronitt:

In those [Australian] jurisdictions applying the reasonableness test, juries have been directed to give the reasonable person the gender of the accused. The question then arises whether the legal fiction of the "reasonable man" should be given familiar male stereotypes about female sexuality. If the reasonable person is given the ethnic and cultural background of the accused, misogynous attitudes which are traditional and culturally acceptable could be taken into account. [82]

39. Another potential problem relates to sentencing. How is a judge to know on what basis a jury reached their guilty verdict? In the absence of a requirement that a jury provides a special verdict, how is a judge to ascertain whether the jury convicted on the basis of knowledge of lack of consent, recklessness as to consent or negligence as to consent.

40. The Sexual Offences Review recommendation may present something of a halfway house between the subjectivism of the present law and that completely objective proposal of the bill. While retaining the subjective nature of the defence and the need for the prosecution to prove a mens rea, it would, with careful jury directions, tackle the problems arising from Morgan as illustrated by Professor Temkin's scenarios. It addresses the need for there to be some degree of care taken to ascertain consent before embarking on a sexual encounter, given the risk of the very serious consequences to the other party occasioned by non-consensual sex. At the same time, where such steps are taken, the defence of mistaken belief is still open to an accused.

March 2003

36 clauses 1 and 3. Back

37 clause 77-"a person consents if he agrees by choice, and has the freedom and capacity to make that choice". Back

38 clause 78. Back

39 clause 78 (5) & (6). Back

40 clause 78 (7) & (78). Back

41 clause 124, schedule 4. Back

42 s. 12(1B) Sexual Offences Act 1956. Back

43 clause 74. Back

44 R v A [2001] UKHL 25, [2001] 3 All ER 1. Back

45 Defined in s. 44 as penile penetration of the vagina or anus. Back

46 Or, more accurately, such a belief negates mens rea, meaning that the prosecution will have failed to prove intent. Back