Consent and the Sexual Offences Act 2003 - Essay Example

Consent and the Sexual Offences Act 2003 Sexual Offences Act 2003 has tried to redefine the role of consent in cases of sexual violation and abolished the Morgan defence, making the excuses of consent as a means to escape liability. The Act has also widened the idea of rape to include oral penetration, dismissing the arguments that restricted the definition of rape to vaginal penetration. This further loosens and dismisses the concept of consent as a loophole, as any asexual assault has to be taken seriously as an offense. By the abolition of Morgan defence of a genuine though unreasonably mistaken belief as to the consent of the complainant, the Act removes the possibilities of the offender escaping by a misrepresentation of facts. The areas where the concept of consent is immaterial include the cases in which the victims are below the age of sixteen (including under thirteen), children under eighteen having sexual relations with persons in a position of trust, children under eighteen involved with family members over eighteen, persons with a mental disorder impeding choice, persons with a mental disorder who are induced, threatened or deceived, persons with a mental disorder who have sexual relations with care workers (Sexual Offences Act 2003). These areas in fact dismiss wholly the possibilities of letting the element of consent arise at all, and to prove the offender guilty, any of the factors or the age mentioned above has to be proved. The non-consensual acts are defined in the Act under Sections 1-4 and they are rape, assault by penetration, sexual assault and causing a person to engage in sexual activity. The Act has three major provisions with regard to consent, which further defines and restricts the element of consent. These also come under Sections 1-4. The three provisions are 1) a statutory definition of consent, 2) the test of reasonable belief in consent, and 3) the evidential and conclusive presumptions about consent and the defendants belief in consent. The statutory definition is “if he agrees by choice, and has the freedom and capacity to make that choice” (Section 74). The previous paragraph explains the cases where the element of consent is removed, as the complainant is not deemed in a position to make a chopice of consent. However, complicated instances like the R v Bree [2007] EWCA 256, the complainant may have consumed alchohol to the extent in which the choice of consent is seriously affected by it. The general law considers cases where the complainant is too inebriated to make a chooice normally as non-consensual, while there remains the assumption that the choice of consent made by the complainant in a drunken state is still considered valid. The Act consideres cases where the complaint has been made immediately after the incident, with sufficient evidence from witnesses as valid instances of non-consensual rape. Reasonable belief in consent of the Act explores the areas where the defendant forces the complainant to sexual acts and consider them as legally offensive. According to this, a person (A) is guilty of an offence if (s)he acts intentionally, (B) does not consent to the act, and (A) does not reasonably believe that (B) consents (Sexual Offences Act 2003). Determining the final part of obtaining reasonable belief can be further interrogated with reference to the circumstances and the steps taken by A to make sure whether B consents. This is referred to in Subsection 2 of Sections 1-4. However, since the Act abolishes the Morgan defence of a genuine though unreasonably mistaken belief as to the consent of the complainant. This hold A in a position to prove that (s)he had obtained consent from B at the time of the incident, and escaping the law on the basis of ambiguous situations is thus curbed. The legal process would include the police interviewing the defendant to ensure that (s)he had taken valid steps to ensure the consent from the complainant. This is a drastic change in the sexual offences act that existed before the 2003 Act, and is very much effective in stopping the defendants from escaping the allegations on the basis of a doubtful situation. The Act defines the test of reasonable belief as a “subjective test with an objective element”. The subjective element will include the question “did the defendant believe the complainant consented?” and the objective element will include the question “if so, did the defendant reasonably believe it”? (Sexual Offences Act 2003). Under Evidential Presumption, the Act pinpoints the instances where the defendant cannot claim to have obtained consent. These circumstances involve the use of violence before the first sexual act, instilling fear in the complainant’s mind in the same case, the complainant was and the defendant was not, unlawfully detained at the time, the complainant was asleep or otherwise unconscious, or cannot respond due to disability at the time and the complainant was forced by the defendant to take substance and led to a state of stupor. All these circumstances are charted out carefully and defined clearly so that the arguments of consent cannot be manipulated by the defendant. If any of these presumptions is proved the complainant cannot be deemed to have consented. Furthermore, there are a couple of provisions where it is conclusively presumed that the complainant had not consented. One among this could be instances where the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act, and these included examining body parts on the pretext of some tests, like breast cancer (R v Tabassum [2002] 2 Cr App R 328). The second would be instances where the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant. This extends the categories of impersonation sufficient to invalidate consent beyond a husband or regular sexual partner (Sexual Offences Act 2003). The definition and restriction of the element of consent in the Sexual Offences Act 2003 is this an effective to the extend of dismissing misrepresentations of rape and other sexual offences by the defendant. The only loophole that would further enable the defendants to escape on the pretext of consent from the complainant would be the cases which deal with instances in a time prior to the establishment of the act. Only those offences committed after the midnight on the 30 April 2004 will be subject to the law. Other than this disadvantage which cannot possibly be sorted out, the Act has successfully redefined sexual offences and more or less abolished defences based on the element of consent. References: http://www.opsi.gov.uk/ACTS/acts2003/20030042.htm. August9, 2007 Read More