27 November 2005

SexLaw - Consent

Wales - A young woman gets drunk and a friend arranges for her to have a security guard escort her home. Two days later she reported to a university counselor that "something" had happened. Police were called in and the guard admitted to consensual sex in a hallway near her apartment. She doesn't remember but claims that if it were consensual she would have led the man into her nearby apartment.
[On cross examination] she admitted "emitting a pleasurable groaning sound" at one stage, but added: "I was unconscious. I stopped groaning as soon as I knew something was happening."
The prosecutor folded his case admitting "drunken consent is still consent" and the judge directed the jury to return a not guilty verdict.

As you might imagine, every politician and and wag who sees any possibility of making hay with this has come forward.
Labour MP Vera Baird, said the judge was incorrect.

"He is wrong, there is no doubt about that, it is a dreadful error. The judge is utterly and totally wrong, he needs to be spoken to and sent on some re-training. This is a dreadful outcome because women will now think they cannot have a single glass of wine - I think this is going to put women off coming forward again and again."
And while that's pretty obviously a politician making hay, some have laid out the case more eloquently.
Until the 2003 Act came into force, a man would normally be acquitted if he could show that he "honestly" believed that consent had been given, even if a woman claimed that she had protested.

But this "honest belief" defence made juries reluctant to find defendants guilty in date rape cases and the conviction rate fell from one in four reported rapes in 1985 to one in 14 today.

The Government thought that more guilty verdicts would be returned if the consent provision was tightened, so it replaced the old defence with a new test: if the prosecution could prove that there was reasonable room for uncertainty over whether consent was given - and the defendant did not take reasonable steps to ensure that it was - he would have committed a rape.

Once the prosecution has proved that sexual activity took place in one of the precluded circumstances, it would be for the defendant, on the balance of probabilities, to persuade a jury that consent had been given.
All-in-all, a disturbing shift from the prosecution proving guilt to the prosecution proving opportunity and then forcing the defense to prove innocence. However, I am not an expert on the laws of the U.K. so I cannot comment on whether that's an accurate assessment of the law.

I get a few hits here daily from the U.K. Anybody able to explain what the actual state of the law is?


John Jenkins said...

Just from reading the statute as you've laid it out, it doesn't appear to me that there is any burden-shifting at all. The government has to show all of the elements of rape, and the defendant can show consent as an affirmative defense. Maybe it's not the best policy choice, but it surely doesn't shift the burden of proof onto the defendant to prove he didn't rape the woman. What's the difference between this affirmative defense and self defense in battery?

ken said...

The essential element of rape is lack of consent.

"The elements of rape . . . consist of engaging in sexual intercourse with the victim, against her will, by force, threat, or intimidation."

"[T]he Supreme Court stated as long ago as 1886, "[w]henever there is a carnal connection, and no consent in fact . . . there is evidently, in the wrongful act itself, all the force which the law demands as an element of the crime." Bailey v. Commonwealth, 82 Va. 107, 111 (1886). In other words, "[t]o determine whether the element of force has been proved in the crime [of rape], the inquiry is whether the act or acts were effected with or without the victim's consent." Jones v. Commonwealth, 219 Va. 983, 986, 252 S.E.2d 370, 372 (1979). Thus, if the victim did not consent . . . the use of force is shown by the act of non-consensual intercourse itself."

Gonzalez v. Commonwealth, 611 S.E.2d 616, 45 Va.App. 375 (2005).

As I read the passage above all the government need prove is that it is possible that consent was not given ("reasonable room for uncertainty over whether consent was given"). Possible falls far short of proof beyond a reasonable doubt of the essemtial element of the crime. Upon showing of this possibility the burden then shifts to the defendant to prove he is not guilty because he must disprove an element of the offense which the prosecution never had to prove.

This is not an affirmative defense. An affirmative defense would be more along the lines of the prosecution proving every element of its case beyond a reasonable doubt and then the defendant standing before the jury and stating/ "Yes, I had sex with her without consent (she was unconscious), but if I didn't the guy standing in the corner with a pistol to my wife's head was going to kill her, me and the victim" (duress). I imagine the "honest belief" defense worked the same way.

Self defense works the same way - "Yes, I hit him (battery), but he hit me first."

John Jenkins said...

But the defense in this case is *not* actual consent. The state already has to prove a lack of actual consent. The defendant is trying to prove that he reasonably believed that there was consent (and maybe no withdrawal of consent). It just doesn't seem to be as you describe it.

Ken Lammers said...

Actually, I think the case was about actual consent; hence "drunken consent is still consent."

The "honest belief" discussion is merely pointing out what the particular defense the law change was putatively meant to deny. The articles seem to indicate that the government confessed failure to prove lack of consent at close of its case in chief; thus the defendant put on no defense at all.

I think what you are describing is the state of the law prior to the change. At that time it appears that the government had to show lack of consent and then the defendant could try to put on an affirmative defense of reasonable belief.

It appears that the government no longer has to show lack of consent; it merely has to "prove that there was reasonable room for uncertainty over whether consent was given." That is pretty much the opposite of proof beyond a reasonable doubt; I spend my trial dates trying to convince juries and judges that there is "reasonable room for uncertainty." After the government has cleared that small hurdle, the defendant is now required to prove consent (probably to a preponderance level). Anyway, this case never got that far because the prosecutor seemed to believe that he could not show lack of consent and folded his tent before the defense began its case.

Lennie Briscoe said...

From a slightly different perspective, there seems to have been a number of high profile rape cases full of problems. The naming of the accused in the media causes them to loose their credibility and hence job. The problem surrounding consentual sex which then turns out to be non-consentual after the incident because one of the parties changes their mind.
An interesting statistic that has been bounded about was something like 80% of reported rapes accused someone the defendant knows, rather then a stranger. In those circumstances where the 2 people would have known each other for an amount of time, and probably be the only people in the room, how on earth would one really know if consent was given?
In this case, drunken consent was good enough to be consent. I find that fair. I don't intent to pull out a breathalizer out in a moment of passion, but then I might be more of a gentleman then someone appearing in the docks.