West Law Report

Whether complainant can choose to consent to sex

Posted in Sexual Offences, Times Law Report by mrkooenglish on June 9, 2008

From The TimesJune 9, 2008

Whether complainant can choose to consent to sex
Court of Appeal, Criminal Division

Published June 9, 2005

Regina v C (Mental disorder: Sexual activity)

Before Lord Phillips of Worth Matravers, Lord Chief Justice, Mr Justice Bean and Mr Justice Wilkie

Judgment May 23, 2008

The effect of a mental disorder had to be severe before it would have the effect that a person was unable to choose whether to submit to sexual activity. If a complainant consented to sexual activity against her inclination because she was frightened of the defendant, even if her fear was irrational and caused by her mental disorder, it did not follow that she lacked the capacity to choose whether to agree to sexual activity.

The Court of Appeal, Criminal Division, so held in allowing an appeal by C against his conviction at Croydon Crown Court (Judge Stow and a jury) on March 22, 2007 for sexual activity with a person with a mental disorder impeding choice, contrary to section 30 of the Sexual Offences Act 2003. The conviction was quashed and a retrial ordered.

Mr Richard Wormald for the appellant; Miss Johannah Cutts, QC, for the Crown.

THE LORD CHIEF JUSTICE, giving the judgment of the court, said that the judge’s summing up suggested that an offence under section 30 would be committed if the complainant felt unable to refuse the sexual advances of the defendant because of an irrational fear arising out of her mental disorder and the defendant knew or could reasonably be expected to know that that was the position.

Such an approach would have been appropriate had section 30(1) not been qualified by section 30(2). Section 30(2) provided, however, a comprehensive definition of the circumstances in which a complainant would be unable to refuse to submit to sexual touching.

Such a lack of capacity not merely involved the complainant being unable to choose to refuse to submit to sexual touching; it involved her being unable to choose to agree to such touching.

The test of incapacity to consent to sexual activity should be the same under criminal and civil law. There was little, if anything, between the test of capacity to choose in section 30(2) and the common law test of capacity to consent.

The words “or for any other reason” in section 30(2) set a similarly high hurdle for the prosecution to those that went before them.

The effect of a mental disorder must necessarily be severe before it would have the effect that a person was unable to choose whether to submit to sexual activity.

If the complainant consented to sexual activity against her inclination because she was frightened of the defendant, even if her fear was irrational and caused by her mental disorder, it did not follow that she lacked the capacity to choose whether to agree to sexual activity.

It did not follow from that irrational fear that the complainant would not have been capable of choosing whether or not to agree to sexual activity in circumstances which did not give rise to that fear.

Irrational fear that prevented the exercise of choice could not be equated with lack of capacity to choose. A lack of capacity to choose to agree to sexual activity could not be person-specific or situation-specific.

The judge also appeared to have been persuaded that if the complainant felt unable to say no because of irrational fear, that was capable of amounting to an inability to communicate her choice within section 30(2)(b). However, section 30(2)(b) was designed to address those whose mental disorders impaired their ability to communicate. There was no evidence that the complainant was unable to communicate any choice that she had made.

The directions that the judge gave to the jury in relation to the ingredients of the offence were not adequate.

The judge should have reminded the jury of the medical evidence as to the complainant’s mental disorder and then directed them that if that had left her so distressed or confused that she was not capable of making a coherent decision to agree to or refuse a request for sexual activity, whoever might make the request, it would be open to them to conclude that she lacked the capacity to choose.

Solicitors: Hallinan Blackburn Gittings & Nott, Westminster; Crown Prosecution Service, Croydon.

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