WEEK 8 PT 2

Question 1

What is the definition of consent according to s74?

Answer 1

V ‘agreed by choice, and had the freedom and capacity to choose’

This definition emphasizes that consent must be an agreement made without coercion and with full understanding.

Question 2

What are the three questions to determine consent under s74?

Answer 2

• Was there agreement?
• Did V have the freedom to choose?
• Did V have the capacity to choose?

These questions help assess whether consent was valid and informed.

Question 3

True or False: According to s74, absence of positive dissent is required for lack of consent.

Answer 3

False

It is not necessary for V to have positively dissented, protested, or resisted for consent to be absent.

Question 4

What does ‘merely submission’ mean in the context of consent?

Answer 4

‘mere submission’ ≠ consent

It indicates that mere submission due to coercion does not equate to valid consent.

Question 5

What case established the difference between reluctant acquiescence and mere submission?

Answer 5

Olugboja [1982] QB 320

This case clarified that reluctant acquiescence can be considered consent, while mere submission cannot.

Question 6

Fill in the blank: For lack of consent, it is not necessary that V positively _________.

Answer 6

dissented

This emphasizes that a lack of active resistance does not imply consent.

Question 7

What are some factors that can negate consent according to the SOA 2003?

Answer 7

• Threats
• Coercion
• Lack of freedom to choose

These factors must be considered to determine if consent was valid.

Question 8

What does the term ‘freedom to choose’ entail in the context of consent?

Answer 8

V must be free from coercion/threats and aware of the nature of the activity

Awareness and absence of coercion are crucial for valid consent.

Question 9

What is the legal significance of ‘informed choice’ related to consent?

Answer 9

Deceptions or mistakes may negate consent

If V was misled, it raises questions about the validity of their consent.

Question 10

In R v B [2006], why did consent remain valid despite the failure to disclose HIV status?

Answer 10

V did not ask

The court ruled that the consent was valid as there was no active deception.

Question 11

What case involved deception about gender affecting consent?

Answer 11

R v McNally [2013] EWCA Crim 1051

The deception about gender deprived the victim of the ability to choose their sexual partner.

Question 12

What is the criticism regarding the use of terms like ‘willing submission’ in consent discussions?

Answer 12

It implies a lack of agency and reduces the person to a passive role

Such terms may undermine the active role individuals should have in sexual relationships.

Question 13

What framework does Tanya Palmer suggest replacing the consent framework with?

Answer 13

A negotiation framework

This approach focuses on the power of partners to negotiate terms instead of solely on consent.

Question 14

What is the primary issue with the discourse during rape trials?

Answer 14

Context is often oversimplified to whole bad/whole good situations

This simplification ignores the complexities of relationships and victim behavior.

Question 15

What does s76 address regarding consent?

Answer 15

It provides conclusive presumptions for certain deceptions that indicate lack of consent

It specifically concerns the nature, purpose, and identity related to the sexual act.

Question 16

True or False: Consent can be considered valid even if V was deceived about the nature of the act.

Answer 16

False

Deception about the nature of the act can vitiate consent.

Question 17

What case illustrated that threats of violence create a presumption of lack of consent?

Answer 17

R v Larter [1995]

This case recognized that threats can negate the freedom required for valid consent.

Question 18

What are the implications of the phrase ‘no means no’?

Answer 18

It positions women as responders rather than initiators in sexual interactions

This framing may limit the perception of agency in sexual relationships.

Question 19

What did R v B [2007] state regarding HIV status and consent?

Answer 19

It left the issue open whether HIV status could vitiate consent if the complainant was positively assured the defendant was not HIV positive

This case indicates that the legal interpretation of consent can be influenced by specific assurances about health status.

Question 20

In Lawrance 2020, what type of deception negates consent?

Answer 20

Deception as to the nature of the act and its specifics (e.g., ejaculation, condom, gender)

This case clarified that consent does not exist if the complainant was misled about critical aspects of the sexual encounter.

Question 21

What is the proposed new framework by Tanya Palmer for consent?

Answer 21

A freedom to negotiate framework

Palmer suggests moving away from the traditional consent framework to better address power dynamics in sexual negotiations.

Question 22

What are the three key components of consent according to Section 74?

Answer 22

1. Was there agreement?
2. Did V have the freedom to choose?
3. Did V have the capacity to choose?

These components are essential in evaluating whether consent is valid in legal contexts.

Question 23

What can negate consent according to Section 74?

Answer 23

A lack of capacity to choose

This includes situations like mental impairment, drugged state, extreme intoxication, or unconsciousness.

Question 24

What does the legal test for capacity involve?

Answer 24

Understanding the information and being able to weigh it to arrive at a choice

This emphasizes the importance of individual assessment rather than relying on status indicators.

Question 25

True or False: Intoxication automatically negates consent.

Answer 25

False ## Footnote Intoxication can complicate consent, but it does not automatically negate it; the capacity to consent must be assessed.

Question 26

What was the key finding in Bree [2007] regarding intoxication and consent?

Answer 26

V does not have to be unconscious to lose capacity to consent; they can lose capacity while still conscious ## Footnote Bree established that the loss of capacity can occur before complete unconsciousness.

Question 27

What happens if a complainant cannot remember if they consented?

Answer 27

It does not automatically mean there was no consent; the jury must decide based on all evidence ## Footnote This highlights the complexity of consent and memory in legal cases.

Question 28

What is the significance of the term 'consent is a process'?

Answer 28

It acknowledges that consent can change over time and is not simply a one-time agreement ## Footnote This emphasizes the dynamic nature of consent in sexual relationships.

Question 29

What are the two types of presumptions under the Sexual Offences Act 2003?

Answer 29

1. Evidential presumptions (s75) 2. Conclusive presumptions (s76) ## Footnote These presumptions assist in determining the presence or absence of consent in specific circumstances.

Question 30

What must the prosecution prove to establish a conclusive presumption under s76?

Answer 30

That D intentionally deceived C as to the nature or purpose of the act ## Footnote This presumption cannot be rebutted, establishing that consent was not given.

Question 31

What does s75 of the Sexual Offences Act outline?

Answer 31

Evidential presumptions regarding circumstances that indicate a presumption of non-consent ## Footnote The prosecution must prove specific conditions to activate this presumption.

Question 32

Fill in the blank: A lack of capacity will ______ consent.

Answer 32

negate ## Footnote This means that if someone lacks the capacity to consent, any agreement they may have made is not legally valid.

Question 33

What is the main issue with intoxicated complainants?

Answer 33

Determining whether they gave factual consent and if they had the capacity to consent ## Footnote This raises complex legal challenges in evaluating consent in cases involving intoxication.

Question 34

In what case was it determined that not resisting is not evidence of consent?

Answer 34

Malone [1998] 2 Cr App R 447 CA ## Footnote The court emphasized that genuine consent cannot exist if a person is unable to resist due to intoxication.

Question 35

What does the case R v Tambedou highlight about memory loss and consent?

Answer 35

Memory loss does not automatically negate consent; it is for the jury to decide based on all evidence ## Footnote This case illustrates the complexities surrounding consent and memory in legal contexts.

Question 36

What should be considered first in a problem question regarding consent under the SOA?

Answer 36

The presumptions (s75 and s76) ## Footnote This approach prioritizes the evidential and conclusive presumptions before applying the definition of consent in s74.

Question 37

What should be considered first in a problem question regarding s74, 75, and 76 SOA?

Answer 37

Presumptions first, and only look at s74 if they don’t apply. ## Footnote This approach ensures that the relevant legal standards are properly evaluated before applying the definitions in section 74.

Question 38

What does a conclusive presumption (s76) imply?

Answer 38

If it applies, then no consent (and no belief in consent). ## Footnote A conclusive presumption negates the possibility of consent being established.

Question 39

What does an evidential presumption (s75) imply?

Answer 39

If it applies, then has this been rebutted? If not, then no consent (and no reasonable belief in consent). ## Footnote An evidential presumption shifts the burden of proof to the defendant to provide evidence of consent.

Question 40

What should you do if neither a conclusive nor evidential presumption applies?

Answer 40

Look at the definition in section 74. ## Footnote Section 74 provides the criteria for determining whether consent was given.

Question 41

What is the mens rea regarding reasonable belief in consent?

Answer 41

Intention to penetrate/intention to touch and did not have a reasonable belief in consent – s1(1) or s3(1) SOA 2003. ## Footnote This outlines the mental state required for liability under the Sexual Offences Act.

Question 42

What was the defense regarding belief in consent before SOA 2003?

Answer 42

Honest belief in consent was a good defense; did not need to be reasonable. ## Footnote This indicates a shift in the legal standard with the introduction of the SOA 2003.

Question 43

What did the case Morgan [1976] AC 182 establish?

Answer 43

A rapist charter; liable when D foresaw risk of non-consent or did not care about it. ## Footnote This case illustrates the subjective nature of belief in consent prior to the SOA 2003.

Question 44

Under SOA 2003, what is required for a belief in consent to be reasonable?

Answer 44

The belief must be reasonable according to the standards of the reasonable man (R v M [2011] EWCA Crim 1291). ## Footnote This establishes an objective standard for assessing belief in consent.

Question 45

What did R v B [2013] EWCA Crim 3 clarify about mental conditions?

Answer 45

Delusional psychotic illness or personality disorder were not relevant circumstances to consider. ## Footnote This ruling emphasizes that certain mental health conditions cannot justify unreasonable beliefs in consent.

Question 46

How should one approach consent in a problem question?

Answer 46

Consider if conclusive presumptions apply (s76), then evidential presumptions (s75), and if neither, establish absence of consent using s74. ## Footnote This systematic approach helps in analyzing consent in legal scenarios.

Question 47

What must be proven regarding absence of consent?

Answer 47

Did C agree? Did C agree by choice? Did C have the freedom and capacity to choose? ## Footnote These questions are essential for establishing whether consent was validly given.