6 October 2016
Lok Wai Ho graduated in July 2016 with a first class honours. He is currently preparing for the Hong Kong Conversion Exams and will start working as a paralegal in Hong Kong next year before pursuing a career as a lawyer. His dissertation was supervised by Dr Georgina Firth.

Rape is defined as penile penetration perpetrated against a person without his/her consent. Absence of consent has long been a vital element of rape. However, consent had been undefined until the Sexual Offences Act 2003, for the first time, provided a statutory definition of it.  My dissertation examined whether the Act has improved understanding and application of consent in the law of rape, the statutory definition of consent, and how the law operates in practice.

Before the 2003 Act came into force, there was no statutory guidance in relation to both consent in fact and belief in consent. Thus, the meaning of consent was a matter for the common law. In R v Olugboja, the Court of Appeal attempted to provide a partial definition of consent in cases involving the issue of whether the victim had consented or merely submitted to sex. However, the court did not rigidly prescribe what kind of pressure and what degree of pressure would be sufficient to render a person’s agreement to intercourse ‘mere submission’. This flexible approach was intended to protect the varying sexual autonomy of different individuals. However, by leaving wide discretion to the jury and asking them to apply their ‘common sense and knowledge’, the outcome of trials would become uncertain and susceptible to the influence of rape myths. Jurors who fail to understand the complicated legal concept of consent are likely to guide their decisions with rape myths and conventional sexual paradigms. For instance, where the victim has not actively struggled, jurors may think that her silence is just disguised consent.

Having considered these issues, I moved on to consider how the new definition of consent in section 74 of the 2003 Act has played out in practice and whether it has effectively reduced legal uncertainty by providing a definition of consent that could be readily understood by legal practitioners and jurors. Under section 74, a person consents if he/she ‘agrees by choice, and has the freedom and capacity to make that choice’. 

The notion of ‘free agreement’ signifies that mutual respect and understanding should form the fundamental basis of sexual relationships, and this should be achieved through communication and agreement. This notion was intended to shift the focus of rape trials from whether the victim resisted to what steps the defendant took to ascertain the mutual agreement. Since rape myths are predominantly concerned with the behaviours of the victim, directing the focus of rape trials away from the victim’s actions might distract the jury from rape myths. However, whether the shift would be evidenced in practice is doubted. Without corroborative evidence of non-agreement, victims still have to give evidence and be cross-examined in rape trials.  Defence counsel may argue that the victim’s dress, demeanour and behaviour amounted to non-verbal consent.

‘Freedom’ and ‘choice’ are two other crucial elements of consent under section 74. Unfortunately, there is no further explanation or definition as to when a person lacks the freedom to make a choice. The Court of Appeal did not seize the golden opportunity in R v Jheeta to further clarify the issues. Under the decisions in Jheeta and Kirk, consent is only vitiated when the pressure is so grave that it overrides the complainant’s freedom to choose whether or not to consent. As a result, in cases involving pressure the issue of ‘freedom’ and ‘choice’ hinge on the victim’s subjective state of mind, which means that the main focus of a rape trial continues to rest on the victim.

The main focus of my dissertation was ‘capacity’. This issue has provoked the most controversy, especially in cases where the victim is voluntarily intoxicated. Despite the Home Office’s recommendation to statutorily define ‘capacity’, the proposed definition did not find its way into the 2003 Act. Although the task of clarifying the issues of ‘capacity’ and intoxicated consent is vital, it is difficult to identify the stage where a person’s affirmative sexual behaviour is a mere reflection of his/her intoxication instead of autonomous choice. There is great individuality in this context. The Court of Appeal in R v Bree has remarkably stated that ‘a drunken consent is still consent’, and intoxication does not necessarily render a complainant incapable of granting consent. The question is again left to jury, taking into account the specific facts and circumstances. This judgment is problematic. Firstly, the court referred to the principle applicable to intoxicated offenders – ‘a drunken intent is still intent’.  By drawing a close analogy between drunken offenders and drunken victims, voluntary intake of alcohol is portrayed as a culpable act and the victim-blaming culture in society may be exacerbated. Secondly, the court’s refusal to establish a certain level of alcohol consumption that would negate consent has effectively reintroduced the flexible yet problematic Olugboja approach into the law. Jurors are again given wide discretion. Numerous empirical studies have suggested that the public (and thus arguably juries) are generally reluctant to believe in the account of a complainant who alleges being raped while voluntarily intoxicated.

To conclude, the s.74 definition fails to clarify the vague concept of ‘capacity’ and it leaves too much discretion to jurors. Further definition or guidance is definitely desirable.  Nonetheless, mere amendment of statutory language cannot address the issues caused by prevalent rape myths. Societal education alongside legal reform is necessary to directly challenge the misperceptions outside the courtroom.