‘Consent’ and ‘Reasonable Belief’: An Overview of the Law on Sexual Offences

‘Consent’ and ‘Reasonable Belief’: An Overview of the Law on Sexual Offences

Consent and reasonable belief are common issues in sexual offences cases. The prosecution will seek to prove that the Defendant had no reasonable belief that the alleged victim consented to the sex act in question, or in cases where the alleged victim is under the age of 16, that the Defendant had no reasonable belief that the child was aged 16 or over. In this article, we provide a brief overview of the law relating to consent and reasonable belief in England & wales. 

What is consent in sexual offences cases?

The Sexual Offences Act 2003 defines consent in law as:

“A person consents if he/she agrees by choice, and has the freedom and capacity to make that choice”. 

Why is consent a key part of a sexual offences case?

To be convicted of a sexual offence, the prosecution service must prove that the Defendant held no reasonable belief that the individual involved was consenting to the sex act or that a child involved was over the age of 16.  

However, this can be a very challenging task for prosecutors in a criminal trial. The defence has many options for demonstrating that there was reasonable belief that the individual consented, or that the Defendant believed the child was over the age of 16. When argued effectively, this will be a defence to any allegations of criminal conduct under the 2003 act. 

How is ‘reasonable belief’ demonstrated?

There is a specific test in law to demonstrate reasonable belief. It is not a defence to have a genuine belief in consent or that a child was over the age of 16, where this belief is deemed to be unreasonable. For example, where a victim is asleep, or the Defendant knew the child well and, as a result, was aware of their age.  

What is the test for demonstrating reasonable belief? 

The test for demonstrating reasonable belief is subjective but also has an objective element. The court will firstly consider the question: 

Did the Defendant believe that the Complainant was consenting? 

The court will look to determine whether the individual involved had capacity to consent under the circumstances. 

Secondly, the court will consider: 

If the Defendant believed that consent was given, was the Defendant’s belief reasonable?

The jury must determine whether the Defendant’s belief was reasonable. 

In cases involving sexual activity with a child aged under 16, the Defendant must demonstrate to a jury that they believed the child was over the age of 16 and that they had taken all reasonable measures to determine the age of the child before they engaged in sexual activity. 

Stuart Sutton has been in practice for over 30 years and specialises in providing an expert defence service to clients accused of sexual offences, including rape, sexual assault, historic sexual abuse, child sexual abuse, online grooming, revenge porn and more.

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