The Sexual Offences Act – presumptions about consent

We have been giving consumers information concerning the Sexual Offences Act 2009. This is a very important act and consumers need to be fully acquainted with some of the sections. We have already given information on Rape, Sexual Offences and Consent.

We continue with Evidential Presumptions about Consent, Section 7:-

“(e) the presence of more than one person at the time of the sexual activity was used to intimidate the complainant;

(f) the complainant was asleep or otherwise unconscious at the time of the sexual activity;

(g) because of the complainant’s physical disability, the complainant would not have been able at the time of the sexual activity to communicate to the accused whether the complainant consented;

(h) (i) the complainant was, at the time of the sexual activity, unable to refuse because of or for a reason related to a mental disorder, and the accused knew or could reasonably have been expected to know this;

(ii) for the purposes of this subsection, the complainant was unable to refuse if the complainant lacks the capacity to choose whether to agree to the sexual activity (whether because the complainant lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason), or the complainant is unable to communicate such a choice to the accused;

(i) the complainant was otherwise incapable of consenting to the sexual activity at the time of the sexual activity;

(j) agreement was expressed by the words or conduct of a person other than the complainant;

(k) abuse of a position of power or authority to the extent that the complainant could not resist at the time of the sexual activity;

(l) the complainant expressed at the time of the sexual activity a lack of agreement to engage in the sexual activity;

(m) the complainant, having considered to engage in the sexual activity, expressed, by words or conduct at the time of the sexual activity, a lack of agreement to continue to engage in the sexual activity.

(3) In subsection (2)(a) and (b), the reference to the time immediately before the sexual activity began is, in the case of an act which is one of a continuous series of sexual activities, a reference to the time immediately before the first sexual activity began.

Conclusive presumptions about consent

8. (1) If in any proceedings for an offence under section 3 or 4 it is proved that the accused did the sexual activity and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed that-

(a)  the complainant did not consent to the sexual activity; and

(b) the accused did not believe that the complainant consented to the sexual activity.

(2) The circumstances referred to in subsection (1) are that –

(a) the accused deceived the complainant as to the nature or purpose of the sexual activity;

(b) the accused induced the complainant to consent to the sexual activity by impersonating a person known personally to the complainant.

Non-Consent offences: children and vulnerable adults

Non-Consent offences

9. For offences under sections 10 to 26, unless expressly stated in any of the offences, it is not necessary for the prosecution to prove that the complainant did not consent, and belief in consent (whether reasonable or not) is not a defence.”

To be continued

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