Scottish Law Commission (Reports)

Part 2 Consent

Consent and sexual offences

2.1      In Part 1 we examined the principle of respecting a person's sexual autonomy.^[1] In this Part, we consider how the idea of respect for sexual autonomy can be best expressed in legal rules and definitions, and in particular we explore the issue whether the Scots law on sexual offences should contain a consent model.
2.2      In many jurisdictions the law on sexual offences uses consent as a key element in defining the scope of specific offences. Where a person has not consented to a form of sexual activity then that activity is treated as criminal. Where a person has consented then the activity is not criminal. These principles are general in nature and are subject to a variety of qualifications and exceptions, for example with offences where consent to sex given by a child or a person with a mental disorder is disregarded for protective purposes. The protective principle applies to people about whom consenting to sexual activity is problematic. In order to protect such people the law bypasses consent for several reasons, one of which is that doubt remains about the validity of any consent which such a person can give.^[2] But in one area of sexual offences consent has traditionally played a central role, namely sexual assault. These offences relate to forms of sexual contact which in the absence of the consent of the participants give rise to criminal liability, as for example rape or indecent assault. In many legal systems rape is defined as sexual intercourse without the consent of the victim. Prior to the decision in Lord Advocate's Reference (No 1 of 2001),^[3] in Scots law the actus reus of rape made no reference to consent and was instead defined in terms of a man having sexual intercourse by force and against the will of the victim. However, the Scots law of rape did recognise consent, not as part of the actus reus but as a defence.^[4] As a result of that decision, rape is now defined as sexual intercourse with a woman without her consent.^[5]
2.3      A further aspect of defining rape in this way relates to mens rea. As rape involves sexual intercourse without the consent of the woman, for the accused to be found guilty the Crown has to prove that the accused knew, or was reckless as to the possibility, that the woman was not consenting. The need for the Crown to prove facts which indicate this state of mind on the part of the accused adds a complexity to the way in which consent operates in the law of rape. The role of the Crown in a rape trial is to lead evidence of facts which show not only that there was as a matter of fact no consent given by the woman but also that the lack of consent was or (should have been) clear to the accused.
2.4      As lack of consent is a core element of both the actus reus and the mens rea of rape, it might be thought that the law would be attentive to making clear what consent means in this context. However, under current Scots law there is no specific definition of consent. Indeed it has been held that a judge should not provide the jury with a definition. In Marr v HM Advocate,^[6] a jury in a trial involving a charge of indecent assault had asked for guidance on the meaning of consent.^[7] The sheriff's response was that the "definition of consent is a common, straightforward definition of consent. It's the common English word given its normal meaning. And that I am afraid is it. Consent is consent." On appeal the High Court of Justiciary commented:^[8]

"We recognise that the sheriff might have decided in the face of this request to use some synonym for consent and, for example, tell the jury that they must look for agreement, but we are not persuaded that it was necessary for her to do so. What was important was that she made it plain to the jury that the word 'consent' had no special meaning in law but required to be given its normal meaning."

2.5      We do not regard the current position on consent in the Scots law on rape and indecent assault as satisfactory. If consent is to be a central part of the law, then the law should provide guidance as to what the term means. But before we consider the issue of defining consent, it is necessary to consider an alternative approach, which is entirely to remove consent as a defining element of sexual offences.

Alternative approaches to defining sexual offences

2.6      The main rationale for omitting consent from the definition of sexual offences is that the concept of consent lacks any clear meaning and its use hinders rather than helps understanding what is wrong about sexual assaults. Various criticisms have been made of defining sexual assault by reference to the lack of the victim's consent (either as part of the offence or as a defence), especially where, as in Scots law, consent is not itself defined. The main criticisms are the following:

(i) There are problems in knowing that consent to sexual activity has been given.

(ii) The idea of consent is ambiguous. A woman who has sexual intercourse with a man because she has been threatened with violence can still be said to have consented to intercourse, albeit for invalid reasons.

(iii) Consent is a vague term which may lead to various undesirable consequences; for example, at a trial the victim might give evidence that she had not consented but the accused could nonetheless suggest that her actings at the time indicated that she had given consent.

(iv) Consent models of sexual offences use improper stereotypes about victims, especially where women are victims.

(v) Consent models have the effect that the focus of a trial becomes the actings of the victim rather than those of the accused.

We consider these points in turn.

Determining consent

2.7      The first point focuses on the difficulty of knowing when consent has, or has not, been given in respect of an activity. Clearly if a person utters the words 'I consent' then it is reasonable to suppose that consent has been given. However, even in this situation there may be factors which suggest that the consent is not genuine (for example, because it is the result of threats of force). That situation is the main point of the second criticism, which we consider later. Rather the present point is how consent can be given where there has been no express utterance of the words 'I consent' (or their equivalent). In some situations sexual conduct proceeds on the basis of the consent of the parties without there being discussion or negotiation about consent, for example where parties have a long-standing relationship and regularly engage in a particular type of sexual activity.
2.8      The giving of consent in this way (implied consent) may also arise through conventions by which certain actings, or even doing nothing at all, can be understood as the giving of consent. This approach can be summarised as 'playing by the rules'. A general example is taking part in a game. If a person takes part in a game genuinely and willingly then she can be said to have consented to the rules of the game. Her consent is implicit in her taking part. Another example is to be found in decision-making; in many types of meetings failure by a person to object to a proposal is taken to mean that the person agrees with it.
2.9      But it is by no means clear that such conventions exist in respect of sexual conduct,^[9] or if they do exist whether it is correct to continue to use them. It could well be, for example, that there are conventions to the effect that where a woman wears revealing clothes or where a man enters a certain type of gay bar, then they are to be understood as indicating their willingness to engage in sex with persons whom they may encounter. But serious questions arise whether there are in fact conventions of this type which are accepted and understood by all the parties whose actings are to be interpreted by them. In the absence of such shared acceptances of the conventions, any inference that a person is playing by the rules of the conventions cannot be drawn. Indeed there are good reasons to suppose that some of these conventions reflect a one-sided, partial view of sexuality.^[10] If that is the case then such conventions should not be used as a means of determining consent. And if that conclusion is adopted, then problems remain about knowing when an activity is based on the parties' consent where there has been no express utterance to that effect.

Ambiguity of consent

2.10      A further problem about a consent model is that even when it can be shown that consent was given, the idea of consent is inherently ambiguous. A distinction can be drawn between consent given for good and acceptable reasons and consent given for bad and unacceptable reasons. For example, a woman may have engaged in sexual intercourse with a man for the following reasons: first, because she found him sexually attractive and wanted to have intercourse; secondly, because he had told her, and she had believed him, that he was a doctor and that the intercourse was a part of a medical examination; or thirdly, because he had threatened to harm her child if she did not have intercourse. Each of these situations contrasts with that of intercourse where the woman is subdued by violence used by the man. And in each the woman gives her consent to the intercourse but for quite different sorts of reasons. In the second case, the consent is based on a mistake as to the purpose of the intercourse and in the third, consent is given to intercourse as the lesser of two evils. Such cases suggest that not all cases of consent to intercourse should be treated in the same way. The first example is not a crime at all; the second is a crime, as is, even more clearly, the third. But (putting aside some overriding factor such as a protective principle), if some type of sexual conduct should be criminal even if the victim has consented, then it cannot be the absence of consent which accounts for its criminal nature.

Problems in the use of consent as a defence

2.11      Further problems about a consent model arise from its use in practice. If the key issue in proving a sexual assault is the presence or absence of the victim's consent, the accused can exploit the vagueness and uncertainty of consent in order to persuade a court or jury that, although the victim now says that she did not consent, her behaviour at the time suggested otherwise. As the victim did not say at the time that she did not consent, then the proper interpretation of what she did is that she did consent. This approach can appeal to the social conventions, mentioned earlier, about behaviour which can be interpreted as indicating willingness to have sex, such as the type of clothing worn by the victim or his presence in certain types of bar. Moreover, even if defence counsel did not adopt this approach in presenting a defence of consent, a jury might use the same sort of reasoning in deciding the crucial question of whether the victim did or did not consent. This scenario is all the more likely where the jury are not given any directions about what consent means in the context of sexual assault.

Stereotypes of women's sexuality

2.12      Allied to this scope for abuse is the potential for consent models to make use of inappropriate stereotypes about sexual behaviour and attitudes, especially in relation to women. The paradigm sexual act is taken as penile penetration of a woman's vagina, and the role of a woman is either to accept or reject the advances of a man. If the woman gives her consent then the intercourse is legitimate, but the woman only engages in sexual activity by passively permitting the man to penetrate her. Critics point out that this stereotyping uses an exclusively male picture of sex and denies women any sexuality other than saying yes or no to a man having sex with her.

Focus on the victim

2.13      A related problem is that at a trial the focus of attention is not on what the accused did to the victim but on what the victim did with the accused. If the defining element of offences such as rape or indecent assault is consent, then whether the victim gave consent becomes crucial in proving the offence. But this requirement concentrates on what the victim did or said and whether the victim's actings can be interpreted as indications of consent, or lack of consent, to intercourse. The focus on the victim brings with it the use of the social conventions or understandings mentioned earlier, which in turn leads to the asking of questions about the sexual behaviour and attitudes of the victim, usually evidenced by considering her sexual character or her sexual history with the accused or with other men. A frequently reported complaint by rape victims is that they feel that they have been harmed twice; first in the actual rape itself and secondly at the trial, where they are forced to discuss in a detailed way a whole range of highly personal issues.^[11]
2.14      We do not propose to give a detailed analysis or assessment of these criticisms of the consent model. Rather our approach is to concede that unless it can be shown that each of them (and other possible criticisms) is misconceived and is inherently implausible, then there are difficulties in using the concept of consent in relation to sexual offences. One possible response is to abandon consent as an element of sexual offences and to replace it with something else. Another response, which we favour is to refine the idea of consent to make it a more satisfactory and workable concept in the context of sexual offences, a concept which would meet the points of criticism already noted.
2.15      In the Discussion Paper we presented two different ways of achieving the aim of avoiding the use of consent in defining sexual offence. The first was to use instead a different key element, for example defining rape and sexual assault as involving sexual intercourse or contact with 'force' or 'against the will' of the victim. This in effect would return Scots law to something like its position from the time of Hume (if not earlier) until the decision in the Lord Advocate's Reference (No 1 of 2001),^[12] with the major difference that consent could not be a defence to any such offence.
2.16      A second approach, which we called the 'definitional' approach, denies that there is any overarching concept which explains every instance of rape and other sexual assaults. Instead what the law should do is to set out all of the factual scenarios involved in rape and sexual assaults. In other words statute should define every possible circumstance in which rape and other sexual assaults could be committed, as well as the defences available in each set of circumstances.
2.17      In the Discussion Paper we stated that we did not favour defining rape and other sexual offences by an exhaustive and comprehensive list of all the factual scenarios which constitute these offences and their specific defences. We thought that the result would be an extremely complex and lengthy set of statutory provisions, which would have to be amended from time to time to cover scenarios not already on the list. Furthermore, we took the view that using another concept such as 'against the will' of the victim involves the same sort of issues as referring to 'without the consent' of the victim. Virtually all of our consultees agreed with our proposal that the concept of consent should remain as a key element of the definition of rape and other sexual assaults.^[13] There was limited support for returning to the use of 'against the will' in place of lack of consent, and no support for the definitional model. Accordingly, we remain of the view that the idea of consent should be used in defining rape and sexual assaults.
2.18      In the Discussion Paper we also noted that consent as an element of the law of sexual assault could be expressed as part of the definition of the offence or as a defence. There we were of the view that the absence of consent is at the very core of crimes such as rape and indecent assault. By placing consent as a defence the criminal law would fail to express what is wrong about the conduct in question.^[14] We therefore favoured treating the absence of consent as part of the definition of these offences,^[15] rather than the presence of consent as a defence to them. This was not a matter which attracted much comment during the consultation process but no consultee disagreed with our conclusion.
2.19      We recommend that:

1. A constituent element of the offences of rape and other sexual assaults and of offences involving coerced sexual activity should be the lack of consent by the victim.

(Draft Bill, sections 1(1); 2(1); 3(1); 4(1); 5(1); 6(1),(2))

Should the law define consent?

2.20      We have already noted the various criticisms that can be made of the idea of consent.^[16] In the Discussion Paper we stated that we saw no merit in the option of continuing to leave consent undefined. Rather, we believed that a refined model of consent could deal with the problems which those criticisms identified.
2.21      Our view received strong support from consultees. However, the case for leaving consent undefined, as in the current law, was made in the response of the Judges of the High Court of Justiciary who argued that consent should carry its 'normal' meaning, which meaning in the context of rape and sexual assault was quite clear. We are not persuaded by these comments. If indeed consent were free from ambiguity and vagueness, even if restricted to the context of criminal offences, then that would be reflected in the views of others who have practical experience of the workings of the criminal justice system, not only in Scotland but in other jurisdictions. No such view was suggested to us by any other consultee and as far as we can discover no other legal system follows the current approach of Scots law of using the concept of consent in sexual offences but of allowing no definition to be given to it.^[17]
2.22      We recommend that:

There should be a definition of consent in respect of sexual offences which involve the lack of consent of any person.

(Draft Bill, sections 9-11)

Refining consent: an active, not passive, model of consent

2.23      In the Discussion Paper we argued that one difficulty with the idea of consent is that it might present a model of sexual activity in which one party (usually, but not always, a woman) does not play an active role. On this approach sexual activity is something which is done to women by men, and women either consent to sex or they refuse consent. However, to the extent that sexual activity involves more than one person (and most forms do) it involves interaction between the parties. If the sexual autonomy of all of the parties is to be respected, then the focus should be on what all the parties, in their respective interactions, do to arrive at genuine consenting sexual activity.
2.24      The model of consent which we proposed was an 'active' (or positive) type as opposed to a passive model. On an active understanding of consent to sexual conduct the basic principle is that both participants in sexual activity should respect each other's sexual autonomy and each is equally active in reaching agreement on their sexual relations. In determining whether agreement has been given to a particular sexual act a court or jury should look at the whole background circumstances. The primary question should be 'what did all the parties do to ensure that they participated in a fully consensual act?' The focus of enquiry would be not only on the behaviour of the victim but on the actions of the accused in the process of reaching agreement on consent.
2.25      We considered that re-interpreting consent in an active sense helps to overcome or minimise the problems thought to exist with a consent model. As we have just noted, by emphasising the essentially interactive nature of sexual conduct, the primary focus of attention moves away from the victim and more to the accused. Problems about the vagueness and ambiguity of consent can be resolved by providing detailed accounts of what consent means rather than, as at present, leaving it undefined. In the Discussion Paper we observed that a similar approach had been taken by the Home Office Review Group, whose recommendations led to the enactment of the Sexual Offences Act 2003. The Group made the following observations:^[18]

"It is vital that the law is as clear as possible about what consent means. The law sets out the ground rules of what is and is not criminal behaviour, and all citizens need to know and understand what these are. This is particularly important because consent to sexual activity is so much part of a private relationship where verbal and non-verbal messages can be mistaken and where assumptions about what is and is not appropriate can lead to significant misunderstanding and, in extreme cases, to forced and unwelcome sex."

"In law consent is given its ordinary meaning, which means that in the particular circumstances of each case the jury has to decide that they are sure, beyond reasonable doubt, whether the complainant was consenting or not. This is an important, and often difficult, role. Clarifying the meaning of consent in statute would enable judges to be able to explain what the law said and for juries to understand just what is meant by consent. It would also enable Parliament to consider and recommend what should and should not form acceptable standards of behaviour in a modern society. One of the messages that had come to us in consultation was that consent was something that could be seen as being sought by the stronger and given by the weaker. In today's world it is important to recognise that sexual partners are each responsible for their own actions and that there should be parity of status."

2.26      As indicated earlier, we do not consider that consent as part of the definition of offences of sexual assault should remain undefined. In the Discussion Paper we noted that definitions of consent in the law of sexual offences in various other jurisdictions provided examples of the model of consent which was of interest to us.^[19] There is a common structure to these provisions. In the first place, there is a general definition of consent; secondly, there is a list of specified factors which indicate when the absence of consent is established or to be presumed. We proposed that Scots law should adopt this two-tiered approach to defining consent.
2.27      There was widespread support among consultees for adopting this broad strategy to defining consent in sexual offences. We also continue in the view expressed in the Discussion Paper that such an approach would bring distinct advantages to the Scots law of sexual offences. Earlier we noted various criticisms which can be made against using lack of consent as a defining part of sexual assaults.^[20] One was that there would be difficulty in determining whether consent had been given in the absence of a person expressly using the words such as 'I consent' or 'I agree'. However, a model which locates consent in the interaction between the parties avoids this problem. Giving consent is not simply a matter of making a particular verbal utterance. It is rather something which emerges from what the parties do and say to each other. The result is that the focus of attention is moved away from the victim, and towards what both parties did to bring about consent. In particular, it allows the law to adopt the position that if one person wants to have sex with another, and there is any doubt that the other person is consenting, then the obvious step to take is to ask.
2.28      A further problem about leaving consent undefined is that the idea is too vague and open-ended to assist in decision-making. But whereas this criticism may have force where consent is undefined, it does not necessarily extend to more detailed definitions, such as the model we are considering. A definition can aid by indicating situations where consent is present and when it is absent. By its nature such a definition would be more detailed than no definition at all but it does not follow that the term would become vague.^[21] Whether or not a definition of consent is vague depends upon what that definition says. There is no reason to suppose that all definitions of consent must have this characteristic.
2.29      We now consider two objections which can be made against the mode of defining consent which we are advocating. The first argues that this approach adds nothing to the law but only states what is obvious. The second takes the opposite view: it argues that the proposed method of defining consent makes the law unduly complicated. However, we do not consider that there is much weight to either of these objections.
2.30      The first objection is to the effect that the proposed change states the obvious and therefore serves no purpose. It is clear, for example, that where a person has sexual intercourse as a result of certain types of threat or deception, then that person has not consented to having intercourse. But other cases are less clear. There may not be universal social consensus on what constitutes consent in relation to sexual conduct. Earlier we quoted a passage from Setting the Boundaries which states that there is scope for misunderstanding and confusion about what constitutes consent to sex. In our view the law of sexual offences should make clear what is and what is not consent in sexual activity. Furthermore, the law has an important function not only in guiding action but also in expressing values. In discussing the list of circumstances where consent was not present, the Home Office Review Group made the following comment:^[22]

"It sets out those areas that are well established in case law as to when consent is not present, and those where it should be clear that consent would not be present. Most are obvious. The courts will continue to develop the common law as they consider cases where different circumstances apply. They will however have the benefit of a more detailed statute, in which Parliament will have given a clear indication to the courts and to society about the bounds of acceptable behaviour."

2.31      A second criticism of the proposed approach takes the directly opposite view from the first. It is argued that defining consent by a general definition along with examples of 'no consent' makes the law unwieldy and complicated. Instead of applying the notion of consent to the facts of each case, a court or jury would have to apply a general definition and then proceed through a possibly long list of statutory examples or indicators. However, we see little merit in this objection. Applying a general definition to the facts of a case does not make things more difficult than applying no definition at all. It may, depending on the content of the definition, make things easier. Further, this objection misunderstands the purpose of the statutory examples or indicators. These examples would not apply to each case. The point is that if the facts of any one case do correspond to one of the statutory examples then the law helps to provide an answer to the question of the presence or absence of consent.
2.32      Nor do we consider that a model of the type we are proposing would be unworkable in practice. In some of the jurisdictions which use this model there are statutory jury directions on how to apply its provisions. For example the directions in Victoria include the following:^[23]

"(1) If relevant to the facts in issue in a proceeding the judge must direct the jury that—

(a) the fact that a person did not say or do anything to indicate free agreement to a sexual act at the time at which the act took place is enough to show that the act took place without that person's free agreement;

(b) a person is not to be regarded as having freely agreed to a sexual act just because—

(i) she or he did not protest or physically resist; or

(ii) she or he did not sustain physical injury; or

(iii) on that or an earlier occasion, she or he freely agreed to engage in another sexual act (whether or not of the same type) with that person, or a sexual act with another person;

(c) in considering the accused's alleged belief that the complainant was consenting to the sexual act, it must take into account whether that belief was reasonable in all the relevant circumstances;

and relate any direction given to the facts in issue in the proceeding so as to aid the jury's comprehension of the direction.

(2) A judge must not give to a jury a direction of a kind referred to in sub-section (1) if the direction is not relevant to the facts in issue in the proceeding."

2.33      These jury directions were assessed by the Law Reform Commission of Victoria which found that they were well received.^[24] We do not propose that a statute reforming the law of sexual offences in Scotland should include jury directions. The point, however, is that in jurisdictions which have adopted a positive model of consent there do not seem to be practical problems in applying it, and there is no reason to suppose that similar directions could not be developed for use by judges in Scotland.
2.34      Indeed, the experience in Victoria of reforming consent in the law on sexual offences gives general support to adopting the proposed model of consent. In the Crimes (Rape) Act 1991 Victoria adopted a definition of consent as 'free agreement' followed by a non-exhaustive list of circumstances in which a person does not freely agree to act. An evaluation report found that there was broad acceptance among legal personnel of the new definition, and for some barristers and judges it had made the conduct of trials easier.^[25] The report noted:^[26]

"Opinions amongst legal personnel interviewed varied about the introduction of the consent definition. Most of the solicitors and magistrates and over half the barristers and judges thought that the definition had been 'helpful' and clarified the common law position on consent. Many thought the definition was easier to work with than the common law because it provided 'a framework', or 'one source meaning'. Some judges thought that the definition was a useful guideline, which made it easier to direct juries at the end of the trial. Others thought it served an educative purpose and was a proper way for Parliament to reflect community views. Some of the solicitors thought the definition had assisted in explaining the law to complainants. They also felt it had influenced decisions to prosecute some cases which might not otherwise have been considered to have a reasonable chance of gaining a conviction."

2.35      We take the view that the law on rape and other sexual assaults should contain a definition of the central element of consent on the lines we have described. We recommend that:

2. (a) For sexual offences in which the lack of consent on the part of the victim is a part of the offence, there should be a statutory definition of consent.

(b) Consent should be defined first by means of a general description of what consent means.

(c) Secondly the statutory definition should also provide a non-exhaustive list of situations where consent does not exist.

(Draft Bill, sections 9 and 10)

General definition of consent

2.36      The first element of the consent model which we propose should be adopted for the law on sexual offences is a general definition of the term. What we are seeking is a broad definition which captures the core meaning of consent but which can also be readily understood without resort to sophisticated philosophical theory. In the Discussion Paper we set out examples of general definitions of consent used in other legal systems.^[27] Drawing on these provisions we proposed two contrasting examples of a general definition. One (consent as 'free agreement') was a short definition stating the core elements of the concept. The other (consent as 'positive co-operation in act or attitude pursuant to an exercise of free will, involving persons acting freely and voluntarily and with knowledge of the nature of the act in question') was more complex but it was suggested because it expressly referred to the issue of co-operative agreement which the positive mode of consent is intended to promote.
2.37      There was a noticeable division of view among consultees on this point. A slight majority favoured option (a), often with some suggested addition to the definition.^[28] Some consultees who favoured option (b) thought that it should be stated in a simpler way. Others advocated following the definition in English law, subject to various amendments.
2.38      We now take the view that consent should be defined as 'free agreement'. This definition has the merit of brevity. It avoids the use of complex terminology. At the same time it provides a meaningful account of what consent involves. It focuses on what for us is often a key issue in the context of sexual activity. Clearly where a person does not agree at all to sexual conduct, consent is absent. But equally clearly a person can 'agree' to conduct without that there being a 'real' or 'full' or 'valid' agreement (as where she submits to sexual intercourse because of physical threats).
2.39      During the consultation process some critical comments were made of this general definition, which we now consider. First, the definition uses the term 'agreement' which might be misunderstood as meaning something like the legal notion of contract. In the Discussion Paper we emphasised that in the context of sexual activity consent functions in quite a different way from agreement (consensus in idem) in the law of contract. It is of the very essence of the law of contract that once a contract is made a party is held bound by it, whatever his or her subsequent wishes. In contrast, in the present context it would be inappropriate to prohibit the withdrawal of consent to sexual activity. However we do not accept that there is likely to be confusion between agreement and contract. Agreement is a term in common usage in a wide variety of social contexts, and not simply in the law of obligations. We do not think it likely that asking a jury if a person gave free agreement to sexual activity would result in jurors thinking of the law of contract. Moreover, we are making a specific recommendation to make clear that consent to sexual activity can later be withdrawn by the party who gave it. ^[29]
2.40      Another concern about understanding consent as free agreement is that the definition is too general or vague to be of any practical value. In particular, it might be argued that the definition fails to capture the idea of a positive, co-operative approach to consent. We would accept that the definition is set out in general terms but we consider that it is still provides an explanation of the idea of consent. In the first place we take the view that the phrase 'free agreement' does suggest notions of positive, cooperative activity between different people.^[30] Secondly, the general definition is only one part of our model of consent in sexual offences. We also propose that the law should specify a number of circumstances in which consent as free agreement is not present.^[31] The cumulative effect of general and particular definitions, taken together, is to set out a model of consent of a positive, co-operative type, as does our proposal on mens rea in relation to lack of consent.^[32]
2.41      A further point was raised by consultees who favoured the general definition of consent as free agreement. This was that if this definition were to be adopted the term 'consent' should not be used in legislation and that reference to free agreement or lack of free agreement would suffice. We are not convinced by this argument. We do not see the role of a general definition as simply that of providing a word or phrase which is a synonym of 'consent.' Rather the purpose of the general definition, as read with other provisions including the particular definitions, is to provide an explanation of the concept of consent.
2.42      We consider that there is merit in the law providing this general definition of consent, as part of a wider explication of that concept as it is to be used in the law on sexual offences. We recommend that:

3. Consent as a constituent element of sexual assaults be defined in general terms as 'free agreement'.

(Draft Bill, section 9)

Particular definitions of consent as free agreement

2.43      Many of the jurisdictions which adopt the positive model of consent in sexual offences supplement the general definition by means of examples of situations where consent is not, or is presumed not to be, present. It is important to stress that these two elements are linked. The statutory indicators are to be read not as examples of 'consent' or lack of 'consent' in an abstract sense but as referring to consent as set out in the general definition (for example, as free agreement). In England and Wales the Sexual Offences Act 2003 provides that 'consent'^[33] is absent in two situations: first, where the accused deceived the victim as to the nature and purpose of the act; secondly, where the accused induced the victim to participate in the act by impersonating someone known personally to the victim.^[34] The 2003 Act also sets out six situations which, if established, give rise to a rebuttable presumption that the victim did not consent.^[35]
2.44      In the Discussion Paper we proposed that Scots law should follow this approach of adding to the general definition of consent a list of situations where consent is not present. This proposal was approved by virtually all of our consultees. However, several of the responses raised important issues about the list of situations, and we recognise that this is a matter which requires clarification and explanation.

Nature and status of items in the list

2.45      In the Discussion Paper we referred to the items as 'indicators'. We sought to distinguish indicators of lack of consent from presumptions about lack of consent. As noted above, English law lists several situations which, if proved, are to be taken as showing lack of consent unless the accused brings forward sufficient evidence to raise an issue as to whether consent was given. We did not favour stating the indicators as evidential presumptions. This was for the reason that doing so does not correctly characterise what the indicators are seeking to do. They are not so much part of the law of evidence as illustrations of the key element of the offence itself, namely lack of consent, and should be understood in that way.
2.46      Nonetheless, several consultees favoured the adoption of rebuttable presumptions of this sort in Scots law, mainly for the reason that their use would result in placing a burden of proof on the accused to show that there was consent. We are still not persuaded that the particular situations set out in the statutory list should be evidential presumptions. We remain of the view that these situations are not concerned with evidence used to prove lack of consent but are rather facts which constitute lack of consent. As one of our consultees put it:^[36] "The situations here do not involve inferring one fact from another. Agreeing to sexual intercourse under a threat of force is not a fact (the basic fact) which allows us to presume a lack of consent (the presumed fact): it is in itself a lack of consent in any legally relevant sense."
2.47      Furthermore the experience of the Sexual Offences Act 2003 in English law suggests that presumptions have only a limited value in proving lack of consent in the prosecution of sexual offences.^[37]
2.48      We now accept that use of the term indicator might have given the misleading impression that we were concerned with factual situations which, like presumptions, pointed to, rather than established, the absence of consent. For this reason we now refer to these factual situations as particular definitions. Each item on the list sets out a situation where consent as free agreement is lacking either because there is no agreement at all, or if there is agreement it is not free in nature. Removing any suggestion of evidential presumptions allows for the application of the normal rules on burden of poof. The onus will remain on the Crown to establish lack of consent for all crimes where that is an element of the offence. Where the Crown can establish the factual situation of one of the statutory situations, then they have successfully discharged that burden of proof. In other words proof of a statutory situation establishes the absence of free agreement. This model of particular definitions of absence of consent has been used in England and Wales^[38] and in Victoria,^[39] and we are not aware of any problems in those systems arising from this way of defining lack of consent.
2.49      Several of our consultees suggested that Scots law should also adopt as part of the definition of consent a situation which is used in some Australian states For example, one of the statutory jury directions used in Victoria is the following:^[40]

"the fact that a person did not say or do anything to indicate free agreement to a sexual act at the time that act occurred is evidence that the act took place without that person's free agreement."

2.50      We do not favour using this factual situation as one of the particular definitions of consent. It may be noted that in the legal systems in question the situation appears as a jury direction, not a legal rule. Furthermore the situation sets out a presumption only, and not a conclusive rule. It is clearly possible for someone to consent to a sexual act without expressly saying so. We have already set out our reasons for not using presumptions, and accordingly we do not favour including this factual situations as one of the particular definitions. However, there may be value in a judge referring to this scenario when directing a jury about consent. The jury can be reminded that if they accept that the complainer said nothing or did nothing to indicate free agreement then that is a factor which suggests lack of consent.

Should there be 'negative' indicators?

2.51      The matters in the list of particular definitions all deal with situations which constitute a lack of consent (Fact A means no consent). Several consultees suggested that Scots law should also contain a list of situations which do not in themselves constitute consent (Fact B does not constitute consent). An example can be found in another jury direction used in Victoria:^[41]

"a person is not to be regarded as having freely agreed to a sexual act just because—

(i) she or he did not protest or physically resist; or

(ii) she or he did not sustain physical injury; or

(iii) on that or an earlier occasion, she or he freely agreed to engage in another sexual act (whether or not of the same type) with that person, or a sexual act with another person."

2.52      In California the Penal Code also mentions two situations which in themselves do not amount to sufficient evidence of consent. These are a current or previous dating or marital relationship; and the victim's suggestion or request that the accused uses a condom or other birth control device. Another possible example would be that the fact that a woman was wearing revealing clothing does not in itself prove that she was consenting to sex.
2.53      We accept that the value of these negative indicators is that they challenge stereotypes about situations when people, especially women, are deemed to be giving consent to sexual activity where they do not expressly state their consent. However, we do not take the view that they should be included in statutory provisions on consent. One problem is in selecting the appropriate indicators. Even in the context of sexual practices in contemporary society, many things do not and should not be held to amount to consent. Picking some, but omitting others, may give rise to the unwelcome risk of an inference of consent in those situations which are not included. Furthermore, the main purpose of indicators of this type is to block the use of inference based on unacceptable stereotypes or social conventions. If the legal system has a role in promoting this goal it might be more appropriately done, as it is in Victoria, by way of jury directions. We also take the view that much can be done, by education and public awareness campaigns, to increase general attitudes and perceptions about situations that do not mean a person is consenting to sex.

Non-exhaustive nature of the list of particular definitions

2.54      A further point about the list of particular definitions is that list is not to be understood as exhaustive of the situations where consent does not exist. This is a crucial point about the consent model which we are proposing. Consent is defined in general terms as 'free agreement'. The particular definitions are concerned with some factual situations where there is no free agreement. But there will be many types of factual situation, not on the statutory list, which may also involve lack of consent as free agreement. In other words, the general definition is not empty in content or devoid of application. In all cases where consent is in issue, the court or the jury must ask if the complainer gave free agreement to the sexual activity in question. If the evidence puts the case into one of the particular definitions, then the answer is that there was no consent. But even if the case does not fall within the particular definitions, the question of the presence or absence of free agreement must still be answered. Indeed we envisage that over time case law will evolve on what constitutes lack of consent in the general sense of free agreement.
2.55      In the Discussion Paper we asked what factual situations should be included on the list of indicators. We have incorporated some of the suggestions into the proposed list, which we consider below. But there are other suggested factual situations which we consider should be left to the general definition of consent. One example relates to the indicator proposed in the Discussion Paper that a person had not consented to a sexual act where at the time of the act the person was subject to actual or threatened force or violence against him or her or against another person. We have decided that the particular definitions should include this factual scenario. However, consultees made various suggestions about expanding the scope of the definition. For example, what if the violence or threat was aimed at property of the victim? Should the definition include threats to do something not involving violence, for example to reveal embarrassing facts about the victim's past? We consider that the question of the presence or absence of consent in these scenarios can be answered by applying the general definition to the established facts of each case: did the complainer freely agree to the sexual act? Other examples of situations of lack of consent to sex which can be answered in terms of the general definition are other types of threats or inducements. In the Discussion Paper we provided two examples. In the first, a man, a highly placed manager at a place of work, tells a woman (a junior employee) that she will be sacked if she does not have sex with him. The man knows that the woman is in severe financial straits. They have sexual intercourse. In the second example, the situation is the same, except that the man tells the woman that if she has sex with him he will give her a promoted post. Our view is that it would be difficult to formulate a rule that situations of these types in all cases constitute lack of free agreement. Rather the presence or absence or free agreement depends upon the particular facts and circumstances of each case.
2.56      The question remains as to what situations should appear on the list. As one of the functions of the list is to state and reinforce social values about appropriate behaviour in sexual matters, the list should include situations where clearly consent is not present, including where violence or threats of violence have been used, or where the victim has been deceived as to some important issue. The list should also include instances of temporary lack of capacity at the relevant time, for example where the victim was asleep or unconscious.
2.57      We are not inclined to include in the list issues concerning general incapacity (because of age or mental disorder) or consent in situations where relationships of trust and authority exist between the parties. Our position is that in many instances where sexual activity occurs involving these situations, the lack of consent will be based on one or more of the other factors on the list. Moreover there is a general question of whether the law should disregard any apparent consent given by a person with a general incapacity based on age or mental disorder or by a person over whom someone holds a position of trust or authority. We explore these issues in more detail in Part 4 when we consider the protective principle.
2.58      There was overwhelming support among consultees for adopting the list of indicators proposed in the Discussion Paper. We have taken account of comments on points of detail in framing the list which are to appear in statute but we are no longer using the term 'indicator'. We would emphasise again that the factual situations set out in the list are not to be understood as pointing to or presuming lack of consent. Rather they are situations which constitute lack of consent.
2.59      We recommend that:

There should be a non-exhaustive statutory list of factual situations which define when a person has not consented to sexual activity. The situations should include the following:

(a) where the person had taken or been given alcohol or other substances and as a result lacked the capacity to consent at the time of expressing or indicating consent unless consent had earlier been given to engaging in the activity in that condition;

(b) where the person was unconscious or asleep and had not earlier given consent to sexual activity in these circumstances;

(c) where the person agreed or submitted to the act because he or she was subject to violence, or the threat of violence, against him or her, or against another person;

(d) where the person agreed or submitted to the act because at the time of the act he or she was unlawfully detained by the accused;

(e) where the person agreed or submitted to the act because he or she was deceived by the accused about the nature or purpose of the activity;

(f) where the person agreed to the act because the accused impersonated someone who was known to the person;

(g) where the only expression of agreement to the act was made by someone other than the person.

(Draft Bill, section 10)

Comments on the particular definitions

2.60      The interpretation of the provisions on the definition of consent, at both the general and particular level, is a matter for the courts in applying the provisions of the statute which gives effect to our recommendations. However, as it is likely that the statute will be read by people who are not lawyers we consider that it might be useful if we made some comments on certain aspects of the particular definitions. We wish to repeat an important point made earlier, namely that the list of particular definitions is not exhaustive of the circumstances where consent is absent and that factual situations which do not fall within the scope of any the particular definitions must still be considered in terms of the general definition of consent as free agreement. This scenario may arise as a result of failure of proof. For example, the Crown may seek to show that a person submitted to sexual activity as a result of being unlawfully detained by the accused; although the evidence shows that the complainer had been unlawfully detained, it does not establish that the accused was responsible for her detention. The failure to bring the case under one of the particular definitions does not mean that absence of consent has not been shown. The question in all cases is: on the facts as established, did the complainer give free agreement to the sexual act?
2.61      Although all the items on the list provide definitions of lack of consent as free agreement, they are not all of the same type. Some definitions concern situations where a person who generally has capacity to consent is unable to exercise it in particular circumstances. Others deal with situations where a person agrees to conduct but the agreement is not free in nature. In these cases there is a causal link between the vitiating circumstances and the giving of agreement. It will be for the Crown to prove this causal link in order to establish the existence of the definition but we do not consider that this would be an unduly difficult task in most cases. Where a woman has sex with someone who has pointed a gun at her or who has locked her into a room, the normal inference is that the woman has acted because of the threat or the detention.

Lack of capacity to consent as a result of intoxication

2.62      This definition deals with the situation where the victim is intoxicated as a result of taking drink or drugs. Its scope is limited to the scenario where whilst in a state of intoxication the person concerned makes some expression or indication of consent to sexual activity. Where the person is at that time so intoxicated as to have no capacity to make free agreement then whatever he or she has said or done to indicate consent does not amount to free agreement. There is no doubt an element of circularity in the definition (someone who is so drunk as to lack capacity to give consent cannot give consent) but we take the view that the definition is not devoid of meaning or usefulness. Its particular value is that it sends a signal that anyone dealing with someone who is intoxicated is put on notice that that person may not be able to give consent to sex no matter what she says or does. The definition also helps in countering any social stereotype that people who are drunk, especially young women, are by that very fact consenting to sex and are to shoulder the full blame for any unwanted sex which follows (they are 'asking for it').^[42]
2.63      What the definition does not, and cannot, do is to set a test for when a person lacks capacity to consent as a consequence of taking drink or drugs. There are degrees of intoxication. A person may become so intoxicated that she falls asleep or becomes unconscious, in which case the particular definition dealing with these scenarios may come into play.^[43] At the other end of the scale, taking drink or drugs may lead to someone losing his or her inhibitions and then doing things whilst drunk that he or she would not have done when sober. The drunken activity is nonetheless based on consent, and sexual activity in this situation would be based on consent. But there is also an effect of intoxication that a person's capacity to make decisions, including the capacity to consent to sexual activity, progressively diminishes until it eventually disappears. There is, then, a distinction between intoxication which results in a lack of capacity to consent and intoxication which alters a person's choices but does not deprive him of the capacity to consent. The difficulty lies in applying this distinction in practical settings. On which side of this line any case falls is a matter of its particular facts and circumstances. This crucial point was emphasised in a recent case in England:^[44]

"If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant's state of mind, if intercourse takes place, this would be rape. However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape. We should perhaps underline that, as a matter of practical reality, capacity to consent may evaporate well before a complainant becomes unconscious. Whether this is so or not, however, is fact specific, or more accurately, depends on the actual state of mind of the individuals involved on the particular occasion.

Considerations like these underline the fact that it would be unrealistic to endeavour to create some kind of grid system which would enable the answer to these questions to be related to some prescribed level of alcohol consumption. Experience shows that different individuals have a greater or lesser capacity to cope with alcohol than others, and indeed the ability of a single individual to do so may vary from day to day. The practical reality is that there are some areas of human behaviour which are inapt for detailed legislative structures. In this context, provisions intended to protect women from sexual assaults might very well be conflated into a system which would provide patronising interference with the right of autonomous adults to make personal decisions for themselves."

2.64      It should be noted that the definition is not concerned with the cause of the victim's intoxicated state. That might arise as result of willing consumption of alcohol with knowledge of its likely effects. Equally the victim might become intoxicated by having been given, without her knowledge, a stupefying drug.^[45] The focus of the definition is on the effect of the resulting intoxication on the victim's capacity to consent. For example, where the evidence shows that someone had been given a stupefying drug but had made an expression of consent before the drug took effect, whether or not there had been free agreement would be a matter for the general, rather than this particular, definition.
2.65      The definition is also limited to the situation where the only expression or indication of consent occurs when the victim is in a state of incapacity because of intoxication. But two people may freely agree whilst sober (or in the early stage of intoxication) to have sex with each other later and then before that agreed time become very drunk. The definition does not deal with this scenario, which again is rather a matter for the general definition.

Agreement or submission because of violence, or threats of violence, against the victim or another person

2.66      This definition uses the term violence, rather than force, to avoid any suggestion that it incorporates the idea of force used in the old law of rape.^[46] The definition covers both actual violence and the threat of violence. Where actual violence is used there is no need for the victim to offer, or to continue with, resistance. The focus is on the effect of the violence on the nature of any agreement or submission made by the victim. The definition does not cover cases where violence is used throughout an attack but the victim at no stage agrees or submits to it. In this case there is clearly no free agreement and the situation is covered by the general definition.
2.67      A threat by itself may be enough if its effect is to prevent free agreement. The definition also applies to cases where not only the victim but any other party is subject to the violence or a threat of it. Also, it need not be the accused who uses the violence or makes the threat. Where B agrees to have sex with A because X has used violence or threatens to use violence, B has not freely agreed.^[47] It is also to be noted that the threat need not be to use immediate violence. If B agrees or submits to having sex with A because of A's threat to assault B or B's child at a later time, B has not freely agreed.
2.68      An important feature of the definition is that it does not require that the violence occurred or the threat was made at time of the sexual act. In other words the definition covers what is known as historic abuse. However, in cases of historical abuse it may be more difficult for the Crown to establish the causal link between the violence or threat and the agreement or submission to the sexual activity.
2.69      The definition covers only threats of violence but not other types of threats. Thus threats to do other types of criminal activity (for example, to abduct or detain the victim or someone else) or to do activities which are not in themselves criminal (as where an employer threatens to dismiss an employee) are not within the scope of the definition. Such cases are to be decided by reference to the general definition: in the circumstances did the complainer freely agree to have sex with the accused?

Agreement or submission because of unlawful detention

2.70      Where a person has been unlawfully detained he or she would be under considerable pressure to agree or submit to sexual advances made by the person responsible for the detention. This definition provides that where the reason for agreement or submission is the unlawful detention, there is no free agreement. The definition is limited in two ways: first, the detention must have been carried out by the accused, and secondly the detention must be unlawful. Whether consent to sexual activity is present or absent in other circumstances involving detention will be answered by reference to the general definition. Unlawful detention will by itself involve other breaches of the criminal law,^[48] which will normally be charged in addition to any rape or sexual assault which results from the lack of the victim's consent. However, it is not a requirement of the particular definition that force or violence is used (for example, a man could be tricked into going into a room and then the room is locked).
2.71      Where a person is detained lawfully but is subject to abuse of authority by those in charge of him, any question of free agreement to sexual activity is a matter for the general definition.
2.72      A possible reaction to unlawful detention, especially in the context of being taken hostage, is that the hostage begins to display sympathy or loyalty to the abductor, and cooperates with him.^[49] If this cooperation were to involve sexual activity, the particular definition would not necessarily lack relevance. If it could be established, by appropriate expert evidence, that any agreement to sexual activity was part of this response mechanism which was itself caused by the unlawful detention, then there would not be free agreement.

Agreement or submission as a result of deception as to the nature and purpose of the sexual act

2.73      This definition deals with the situation where the accused has deceived the victim as to the nature or purpose of the sexual act. Although nature and purpose are distinct ideas, there may be some overlap between them (for example, where a woman is told that digital-vaginal penetration is a necessary medical procedure). A mistake as to the nature of a sexual act may exist when the victim is aware of the relevant physical characteristics (for example, the insertion of a penis into the victim's vagina). What is relevant is the victim's awareness, or lack of awareness, of the act as a sexual act. Obvious examples are where the accused falsely tells the victim that the act is a medical procedure.^[50] But the definition would not apply to cases where the act was a medical procedure done for medical reasons but the accused obtained sexual gratification from carrying it out.
2.74      Deceptions by the accused which do not relate to the nature or purpose of the act are not covered by this definition. Examples are where sexual intercourse resulted from the accused having falsely represented that the victim was under threat of attack and that he could protect her,^[51] or where the accused falsely represents that he is free from HIV.^[52] But such cases will be determined by applying the general definition.
2.75      Finally, it is to be noted that the deception must be carried out by the accused. The definition does not apply where a third party makes the deception. Nor does it apply where there is an uninduced mistake by the victim. These cases would also be decided in terms of the general definition, and where the accused was aware of the victim's mistake but failed to disabuse him of it, this factor would have relevance in proving mens rea.

Agreement or submission as a result of deception as to the identity of the other person

2.76      This definition deals with the situation where the accused has deceived the victim into thinking that he is someone whom the victim knows and the victim has sex with him because of the induced mistake. The inducement must be made by the accused, not by a third party. Nor does the definition apply to a unilateral mistake by the victim. In these situations the question of lack of consent will be determined by applying the general definition. The focus of the definition is on the impersonation by the accused of someone who is known personally to the victim. The wrong involved in this situation is not simply a fraud on the victim as to the person with whom she is having sex. It is that the victim wrongly thinks that she is having sex with a particular person whom she knows. Consent was given by her to intercourse with that particular person, not to the accused who is falsely claiming to be that person. The definition does not require that the person in question was in any particular relationship with the victim.^[53] No guidance is given on what is meant by 'known personally' to the victim,^[54] which may require interpretation by the courts.
2.77      The requirement that the impersonation must be of someone known to the victim helps to avoid problems about distinguishing between a person's identity and attributes. The definition does not cover the situations where the accused induced the victim into having sex by claiming falsely that he was a famous film star or football player or that he was rich, situations to be decided by applying the general definition.

Expression of agreement made by someone other than the victim

2.78      A clear infringement of a person's autonomy in sexual matters is where that person does not make any expression of consenting to sexual activity but some other person does so. This definition makes abundantly clear that where the only expression of agreement to sexual conduct involving the victim is made by someone other than the victim himself or herself there is no free agreement as far as the victim is concerned.^[55] It might be thought that such a provision is unnecessary and does no more than state the obvious.^[56] However, there is value in the law explicitly making the point that if sex with someone is being contemplated then reasonable steps have to be taken to ensure that he or she has expressed her consent to it. Respect for a person's autonomy requires nothing less.
2.79      The definition does not prevent a person expressing consent through the medium of a third party, for example where a person who can communicate only by means of sign language using an interpreter to convey the consent. In this scenario the consent is still being expressed by the person himself or herself. Nor does the definition prevent a third party from repeating an expression of consent already made by the person in question. However, in each of these scenarios the other party would be on notice that he should take appropriate steps to ensure that the consent had in fact been given.^[57]

Sexual activity with a person who is asleep or unconscious

2.80      This definition is concerned with problems about the victim's capacity to give and express consent. People who are asleep or unconscious lack such capacity while they are in that state. Surprisingly, at common law (at least until the decision in the Lord Advocate's Reference (No 1 of 2001))^[58] it was not rape for a man to have sexual intercourse with a woman who was asleep or unconscious.^[59] What the definition makes clear is that if someone lacks capacity to consent to a sexual act, then he or she has not consented to that act. It does not matter what has caused the state of sleep or unconsciousness. It might, for example, be the result of intoxication (either voluntary or involuntary).
2.81      The definition does allow for one situation where consent to sexual activity might be present even although the person concerned is asleep or unconscious during it.^[60] This is where that person has consented in advance to that particular sexual act taking place while he or she is asleep or unconscious.^[61] Of course, whether such consent was actually given has to be determined by applying the general definition of consent and any relevant particular definition.

Limited or specific consent

2.82      A separate issue from the definition of consent concerns the limits or scope of the agreement when consent is given to sexual activity. Consent may be qualified or restricted in some way. An example of consent of this type is where a woman consents to have sexual intercourse with a man provided he wears a condom. In this situation the woman cannot be said to have consented to unprotected sex, and if the man disregards this element of the consent he would be guilty of rape or a sexual assault. Similarly, the fact that a woman consents to one type of sexual contact does not of itself imply she consents to a different type. Kissing, for example, is not a sign of consenting to sexual intercourse. The fact that a woman consents to engaging in one type of sexual act (for example, touching, oral sex) does not imply that she has consented to other types of act (for example, vaginal intercourse). There must be something in addition to engaging in one type of consensual sex to allow the inference that consent has been given to another type of sexual act.^[62]
2.83      In the Discussion Paper we proposed that the law should make it clear that there is no implied escalation to consenting to different types of sexual activity. We were concerned that it might be thought that there are social conventions whereby, for example, a woman going back to man's flat, or kissing a man, are signs that the woman is consenting to full intercourse. We doubted whether there are such conventions which are generally agreed by all the parties whose behaviour is said to be governed by them. But in any case it should be clear that consent has not been given in these situations and the law should reflect the point that consent must be given to specific acts of sexual contact. It can hardly be said that this approach places people in practical difficulties. If one person is not sure that another person is consenting to a sexual activity with him, the obvious and reasonable thing to do is to ask if there is consent.
2.84      This proposal received virtually unanimous support from consultees. We recommend that:

4. The giving of consent to one sexual act does not by itself constitute consent to a different sexual act.

(Draft Bill, section 11(2))

Withdrawal of consent

2.85      A further situation is where someone gives consent to a sexual act and then withdraws consent either before or during the act.^[63] In our view the exercise of sexual autonomy involves the right to withdraw, at any time, consent previously given. As we noted earlier, consent in this context operates differently from agreement (consensus in idem) in the law of contract.^[64] There is already Commonwealth authority that where a man has consensual intercourse with a woman and during the intercourse she indicates that she no longer consents to it, then if the man continues with the intercourse he is guilty of rape.^[65] We agree with the principle of this approach and we are of the view that it should also represent Scots law. Our recommendation to this effect in the Discussion Paper received virtually unanimous acceptance. We wish to make clear that consent to a sexual act cannot be withdrawn after the act is completed, as in this situation the other party to the act has no way of adapting his or her behaviour to the withdrawal of consent.
2.86      We recommend that:

5. A person who has consented to a sexual act may at any time before or up until completion of that act indicate that he or she no longer consents, and if the act continues to take place it does so without that person's consent.

(Draft Bill, section 11(3),(4))

Notice of a 'defence' of consent

2.87      There is a general requirement that an accused person who wishes to use a special defence must give advance notice of his intention to do so.^[66] This requirement has been extended to defences which are not strictly speaking special defences. Included within this category is the defence to a charge of various sexual offences that the complainer consented to the act at the basis of the charge.^[67] The provision on the defence of consent was added by the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002,^[68] but the position in respect of the crime of rape was altered by the Lord Advocate's Reference (No 1 of 2001).^[69] That decision defined the crime of rape as a man having sexual intercourse with a woman without her consent. In other words, the absence of consent was to be treated as part of the actus reus of crime which the Crown would require to prove.
2.88      In Part 3 we recommend that the offences of rape, sexual assault, and sexual coercion (and related offences) should be defined in terms of the absence of the consent of the victim rather than the presence of consent being a defence. In these circumstances the provisions on advance notice are redundant as their effect is to require notice to be given of an element of a crime which the Crown are in any case required to prove. Accordingly we recommend that:

The provisions relating to notice of consent as a defence to a charge of a sexual offence in sections 78 and 149A of the Criminal Procedure (Scotland) Act 1995 should be repealed.

(Draft Bill, section 44(2); schedule 4)

Note 1   Paras 1.25-1.27.    [Back]

Note 2    For fuller consideration of offences based on the protective principle see Part 4 below.    [Back]

Note 3   2002 SLT 466.    [Back]

Note 4   This position is so established that it is taken for granted in leading cases such as Jamieson v HM Advocate 1994 JC 88 and Meek v HM Advocate 1983 SLT 280. The defence of consent is also referred to in statute: see the Criminal Procedure (Scotland) Act 1995, ss 78 and 149A (introduced by the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002, s 6 (accused to give notice of defence of consent)). Later we consider whether it is better to treat consent as part of the offence or as a defence. See para 2.18. We consider (at paras 2.87-2.88) whether the provisions on giving notice of consent should be repealed.     [Back]

Note 5   A further consequence of the decision is to make redundant the separate crime of clandestine injury to women.    [Back]

Note 6   1996 SCCR 696.    [Back]

Note 7   The idea of consent in the law on indecent assault is the same as that in the law of rape.    [Back]

Note 8   Marr v HM Advocate 1996 SCCR 696 at 699 E-F.     [Back]

Note 9   DN Husak and GC Thomas III, "Date Rape, Social Convention, and Reasonable Mistakes" (1992) 11 Law and Philosophy 95.    [Back]

Note 10   There is an extensive literature which indicates that men and women adopt different perspectives in the context of sexual interaction. For discussion, see David Archard, Sexual Consent (1998), pp 30-37. Archard quotes (pp 156-157) the following passage from one of these works (Antonia Abbey, "Sex Differences in Attributions for Friendly Behavior: Do Males Misperceive Females' Friendliness?" (1982) 42 Journal of Personality and Social Psychology 830, at 830 n 17): "The research described in this article grew out of the observation that females' friendly behavior is frequently misperceived by males as flirtation. Males tend to impute sexual interest to females when it is not intended. For example, one evening the author and a few of her female friends shared a table at a crowded campus bar with two male strangers. During one of the band's breaks, they struck up a friendly conversation with their male table companions. It was soon apparent that their friendliness had been misperceived by these men as a sexual invitation, and they finally had to excuse themselves from the table to avoid an awkward scene. What had been intended as platonic friendliness had been perceived as sexual interest. After discussions with several other women who verified that this experience was not unique, the author began to consider several related, researchable issues."    [Back]

Note 11   Temkin, pp 8-11. In Part 6 we discuss the current law on the use which can be made of evidence as to the complainer's sexual history and sexual character. See paras 6.24-6.33.    [Back]

Note 12   2002 SLT 466.    [Back]

Note 13   However, at least one consultee suggested that the word 'consent' could be omitted from the new definitions of the offences.     [Back]

Note 14   For discussion see K Campbell, "Offence and Defence" in IH Dennis (ed), Criminal Law and Justice (1987), 73.    [Back]

Note 15   This is currently the law on rape since the decision in Lord Advocate's Reference (No 1 of 2001) 2002 SLT 466.    [Back]

Note 16   Paras 2.7-2.13.    [Back]

Note 17   It may be that the Judges had in mind a wholly different approach to consent from that which we used in the Discussion Paper. In their Response they write that: "It is said that 'the idea of consent is inherently ambiguous'. We do not agree that consent is either an idea or ambiguous. The conclusion is that 'there are difficulties in using the concept of consent in relation to sexual offences'. Consent is not a concept. It is a matter of fact which we think can be readily understood by juries in a range of different circumstances." We would re-iterate that our concern is with identifying the appropriate idea or concepts which should be used in the definitions of sexual offences. We consider later the separate question whether consent on the model we propose may cause difficulties in directing juries or in being understood by juries. See paras 2.31-2.34.    [Back]

Note 18   Setting the Boundaries, paras 2.10.1; 2.10.3 respectively.    [Back]

Note 19    We gave particular attention to jurisdictions which have carried out recent reviews and reform of the law on sexual offences, including England and Wales, Canada, California and New South Wales. In formulating our proposals, we were particularly influenced by the approach taken in the State of Victoria.    [Back]

Note 20   Paras 2.7-2.13.    [Back]

Note 21   Later we consider in more detail the objection that the definition would make the law too complicated to apply (see paras 2.31-2.34).    [Back]

Note 22   Setting the Boundaries, para 2.10.7. The Home Office Review Group appears to assume that a statute reforming sexual offences would co-exist with the common law. However we are proceeding on the basis that statutory reform would result in the abolition of the common law. See paras 3.34-3.35; 3.46-3.47.    [Back]

Note 23   Crimes Act 1958, s 37 ('Jury directions on consent'). (We have set out the version of s 37 as amended in 1997 and 2006.) An example of the application of s 37(1)(a) is: "Consent obviously is a state of mind. It means free agreement. It may be evidenced by what the woman says or does or what she does not say or do. But evidence that a woman does not say or do anything to indicate consent is normally enough to show the act takes place without that person's free agreement." (Victorian Law Reform Commission, Sexual Offences: Final Report (2004), p 347 (Trial 5).) An example of a direction based on s 37(1)(b)(iii) is: "you have heard in this case … of previous consensual intercourse with the accused, and there has [sic] been questions about whether or not she had consensual intercourse with another or others, but whatever the answer on that, well, the fact that she may have is not to be regarded as resulting in free agreement on this occasion." (Ibid, p 348 (Trial 20).)    [Back]

Note 24   It was noted that the only real problem was that some judges would give all the directions even in cases where only one or some were relevant.    [Back]

Note 25   The Crimes (Rape) Act 1991: An Evaluation Report, Report No.2, (1997), Rape Law Reform Evaluation Project, Department of Justice, Victoria.    [Back]

Note 26   Ibid, Executive Summary, p 71.    [Back]

Note 27   For example England and Wales: "For the purpose of this Part a person consents if he agrees by choice, and has freedom and capacity to make that choice (Sexual Offences Act 2003, s 74); California: "'consent' shall be defined to mean positive co-operation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved." (California Penal Code, s 261.6); Canada: "'consent' means … the voluntary agreement of the complainant to engage in the sexual activity in question" (Criminal Code, s 273.1); Victoria: "'consent' means free agreement." (Crimes Act 1958, s 36)     [Back]

Note 28   One addition, mentioned by several consultees, was the 'Victorian direction'. See later at paras 2.49-2.50.    [Back]

Note 29   For our recommendation on this point see paras 2.85-2.86    [Back]

Note 30   One of the reasons given by the Report on the Australian Model Penal Code for adopting this formulation was that "it emphasises, by way of the use of the word 'agreement', that consent should be seen as a positive state of mind. Defining consent in positive terms has been a focal point of reform in recent years, on the basis that to do so more properly reflects two objectives of sexual offences law: the protection of the sexual autonomy and freedom of choice of adults." (Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General of Australia, Model Criminal Code Report (1999), chapter 5, p 43.)    [Back]

Note 31   Paras 2.56-2.59.    [Back]

Note 32   Paras 3.69-3.78.    [Back]

Note 33   That is, as defined in general terms in section 74 of the Act: "a person consents if he agrees by choice, and has the freedom and capacity to make that choice."    [Back]

Note 34   2003 Act, s 76.    [Back]

Note 35   Section 75. The situations are where at the time of the relevant act: (i) violence had been used or threatened against the victim; (ii) violence had been used or threatened against another person; (iii) the victim was unlawfully detained and the accused was not; (iv) the victim was asleep or otherwise unconscious; (v) the victim was unable to communicate because of a physical disability; and (vi) the victim had involuntarily consumed a substance which caused or enabled him or her to be stupefied or overpowered.    [Back]

Note 36   Mr James Chalmers.    [Back]

Note 37   The Home Office has considered whether to add a further presumption relating to the capacity of a person to give consent whilst intoxicated (Office for Criminal Justice Reform, Convicting Rapists and Protecting Victims – Justice for Victims of Rape. A Consultation Paper (2006)). In rejecting this suggestion the Consultation Paper noted (p 15): "there is little evidence that the existing evidential presumptions have enjoyed great usage. The presumptions apply unless the defendant raises 'sufficient evidence' to raise an issue as to whether the victim consented. Where the defendant does raise such evidence, the judge will direct the jury that the presumption does not apply and the jury should consider the issue of consent in the normal way. In practice, it is not particularly onerous for defendants to enter the witness box and give 'sufficient evidence' to disengage the presumption. Therefore, we believe that the arguments for creating an additional evidential presumption are not strong and the better course would be to proceed by legislating to provide for a clearer definition of capacity." See also R v Jheeta [2007] EWCA Crim 1699 (at para 23): "The starting point in our analysis is to acknowledge that in most cases, the absence of consent, and the appropriate state of the defendant's mind, will be proved without reference to the evidential or conclusive presumptions. When they do apply, section 75 and section 76 are directed to the process of proving the absence of consent to whichever sexual act is alleged. They are concerned with presumptions about rather than the definition of consent." The relative under-use of the evidential presumptions in the 2003 Act was confirmed to us by a senior prosecutor in the Crown Prosecution Service.    [Back]

Note 38   Sexual Offences Act 2003, s 76 which provides that the complainant did not consent to the relevant act where (i) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act; and (ii) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant. English law characterises these provisions as 'conclusive' presumptions. We find this terminology unhelpful and prefer to talk of rules of substantive law which provide definitions of the absence of consent.     [Back]

Note 39   1958 Act, s 36.    [Back]

Note 40   Crimes Act 1958, s 37(1) (Victoria). This is the version of the direction which we set out in the Discussion Paper. The direction was amended in 2006 and now reads as follows: "The fact that a person did not say or do anything to indicate free agreement to a sexual act at the time at which the act took place is enough to show that the act took place without that person's free agreement." In Tasmania there is a similar direction: "The fact that a person did not say or do anything to indicate free agreement to a sexual act is normally enough to show that the act took place without that person's free agreement" (Criminal Code Act 1924, Sch 1, s 371AA(2) (Tasmania)).     [Back]

Note 41   Crimes Act 1958, s 37 ('Jury directions on consent'). An example of the application of s 37(1)(a) is: "Consent obviously is a state of mind. It means free agreement. It may be evidenced by what the woman says or does or what she does not say or do. But evidence that a woman does not say or do anything to indicate consent is normally enough to show the act takes place without that person's free agreement." (Victorian Law Reform Commission, Sexual Offences: Final Report (2004), p 347 (Trial 5).) An example of a direction based on s 37(1)(b)(iii) is: "you have heard in this case … of previous consensual intercourse with the accused, and there has [sic] been questions about whether or not she had consensual intercourse with another or others, but whatever the answer on that, well, the fact that she may have is not to be regarded as resulting in free agreement on this occasion." (Ibid, p 348 (Trial 20).)    [Back]

Note 42   See, for example, Domestic Abuse 2006/7: Post Campaign Evaluation (Scottish Executive. Office of Chief Researcher; 2007), which reported a study on attitudes in Scotland towards rape and in particular how responsible a woman was considered for being raped in various circumstances. (Respondents were approximately an equal number of men and women.) The majority considered that women were not responsible for rape in any circumstances. However 27% thought a woman was responsible if she was drunk; 26% if a woman was dressed in revealing clothing; 32% if a woman was flirting; and 18% if a woman was known to have had many sexual partners.     [Back]

Note 43   See paras 2.80-2.81.    [Back]

Note 44   R v Bree [2007] 2 All ER 676 at 684G-685B (paras 34 and 35).    [Back]

Note 45   In English law there is a rebuttable presumption that there is no consent where "any person had administered or caused to be taken by the complainant, without the complainant's consent, a substance which having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act" (Sexual Offences Act 2003, s 75(2)(f)). In English law any issue of consent when the victim lacks capacity as a result of voluntary consumption of drink or drugs is a matter for the general definition : R v Abbes [2004] EWCA Crim 1813. In Part 3 we propose that there should be an offence of administering a stupefying substance for a sexual purpose (see paras 3.64-3.66).    [Back]

Note 46   Prior to the decision in Lord Advocate's Reference (No 1 of 2001) rape was defined as sexual intercourse with a woman by force. However, the idea of force was given an extended definition to include any method of overpowering the woman's will (see Charles Sweenie (1853) 3 Irvine 109, 137 (Lord Ardmillan)).     [Back]

Note 47   In this scenario, A's guilt would of course depend on his having the mens rea as to the lack of consent on the part of B.    [Back]

Note 48   There is an offence at common law of abducting a woman with intent to rape her (Barbour v HM Advocate 1982 SCCR 195).    [Back]

Note 49   The so-called Stockholm syndrome.     [Back]

Note 50    Baillie v HM Advocate 2007 SCCR 26 (plea of guilty by doctor to 17 charges of indecent assault by way of vaginal examination and touching for no clinical reason). See R v Williams [1923] 1 KB 340 (16 year old girl persuaded to have sexual intercourse with the accused who had told her that this would improve her singing voice).     [Back]

Note 51   R v Jheeta [2007] EWCA Crim 1699.    [Back]

Note 52    R v B [2007] 1 WLR 1567 (where the Court of Appeal held that under English law the failure of the accused to inform the complainant that he was HIV positive did not by itself vitiate the complainant's consent to sexual intercourse).    [Back]

Note 53   The definition is accordingly much wider than the offence under section 7(3) of the Criminal Law (Consolidation) (Scotland) Act 1995: "A man who induces a married woman to permit him to have sexual intercourse with her by impersonating her husband shall be deemed to be guilty of rape." This provision derives ultimately from the Criminal Law Amendment Act 1885, s 4, which overturned the decision of William Fraser (1847) Arkley 280.     [Back]

Note 54   For discussion of the similarly worded provision in English law (Sexual Offences Act 2003, s 76(2)(b)), see David Ormerod, Smith & Hogan Criminal Law (11th edn, 2005), p 611. Ormerod gives the example of A and B who arrange to meet (for the first time) after internet dating. A does not turn up at the date but X appears in his place pretending to be A. If X and B later have sex, does this trigger the particular definition?    [Back]

Note 55   An example of this situation is DPP v Morgan [1976] AC 182, where one of the accused told three other men that they could have sex with his wife and that although she might appear to be resisting in fact she was willing to have sex with them.     [Back]

Note 56   A similar provision exists in the Canadian Criminal Code, section 273.1(2), which states that there is no consent where "the agreement is expressed by the words or conduct of a person other than the complainant." There is no equivalent in the Sexual Offences Act 2003 but a conclusive presumption to this effect was part of the Bill as introduced in Parliament. An explanation for the removal of the clause has been suggested by Professors Temkin and Ashworth ("Rape, Sexual Assaults and the Problems of Consent" [2004] Crim L Rev 328, 339): "some argued that it tipped the scales too far against defendants, in cases where it was simply one person's word against another's: the cogency of this argument depends on whether people have been put on notice that they should never accept a third party's word in matters of sexual autonomy. The other objection was that people with a learning disability or mental disorder could not be expected to know that they were being deceived: insofar as this has substance, it is an argument against almost all objectives tests in the criminal law, and might best be dealt with by way of exception or defence."     [Back]

Note 57   This matter arises in particular in relation to mens rea. See discussion at para 3.77.    [Back]

Note 58   2002 SLT 466.    [Back]

Note 59   Charles Sweenie (1858) 3 Irvine 109. Instead the offence was one of clandestine injury or indecent assault. An explanation of this approach was given in the later case of Rodgers v Hamilton 1994 SLT 822: "If intercourse was to take place while [the complainer] was asleep, she was not in a position either to consent or to withhold consent from such intercourse, and it is well established that if intercourse took place in these conditions it would not constitute rape but clandestine injury or indecent assault" (Lord Justice Clerk Ross at 823 (emphasis added)). The status of the crime of clandestine injury since the decision in Lord Advocate's Reference (No 1 of 2001) is problematic. Later we recommend that this crime should be abolished (see paras 3.34-3.35).    [Back]

Note 60   It is to be noted that the presumption in English law on this point is a rebuttable rather than a so-called conclusive one (Sexual Offences Act 2003, s 75(2)(d)).     [Back]

Note 61   Ormerod, op cit, (p 606) argues about the presumption in English law that: "For example, A who performs a relevant sexual act (note that the presumption applies to offences of touching and not just penetrative acts) on his sleeping partner as a gesture of intimacy to wake her ought not to be conclusively presumed guilty."     [Back]

Note 62   See Note, "Acquaintance Rape and Degrees of Consent: 'No' means 'No' but what does 'Yes' mean?" (2004) 117 Harvard Law Review 2341, 2354-2355, where referring to the decisions of People v Ray 2002 WL 64543 (Cal Ct App) and Commonwealth v Fionda 599 NE 2d 635 (Mass App Ct) the following point is made: "Indeed, both the Ray and Fionda courts, without explicitly saying so, seemed to rely on some distinction between the nature of intercourse and the nature of other sexual acts. The acknowledgment of specific, rather than generalized, consent would prompt courts to engage in a more explicit dialogue attempting to articulate and define such distinctions. For example, in evaluating petting and oral sex – the conduct at issue in the aforementioned cases – questions as to the nature of these acts are central to a determination of relevancy to consent to intercourse. Presumably, people engage in petting with greater frequency than they engage in sexual intercourse; therefore, petting alone does not tend to show consent to sex. However, petting can operate as foreplay to intercourse and in those instances may indicate consent to sex. To distinguish between these two circumstances, the court could require the jury to consider whether the consensual sexual intimacy of the two parties escalated consensually from petting to intercourse."     [Back]

Note 63   For present purposes, the focus on an 'act' is on the actings (actus reus) which make up specific sexual offences which are defined by reference to the victim's lack of consent. See further Part 3.    [Back]

Note 64   In the well-known US case of Tyson v Trigg (50 F.3d 436, 448 (7th Cir 1995)) the jury were instructed in the following terms: "Possible manifestations of consent before [the victim] entered the bedroom would not be enough evidence to require that an instruction on reasonable mistake be given. The law of rape is not a part of the law of contracts. If on Friday you manifest consent to have sex on Saturday, and on Saturday you change your mind but the man forces you to have sex with him anyway, he cannot use your Friday expression to interpose, to a charge of rape, a defense of consent or of reasonable mistake as to consent. You are privileged to change your mind at the last moment."    [Back]

Note 65   Kaitamaki v R [1985] AC 147, PC (New Zealand).    [Back]

Note 66   Criminal Procedure (Scotland) Act 1995, ss 78; 149A.    [Back]

Note 67   The offences are those listed in section 288C of the 1995 Act. However, that list of sexual offences was originally drawn up in the context of cases where an accused could not conduct his defence in person. The list includes offences to which the consent of the complainer is not a defence (for example, incest and related offences (Criminal Law (Consolidation)(Scotland) Act 1995, ss 1-3); unlawful sexual intercourse with a girl under 13 or 16 (s 5)).    [Back]

Note 68   This Act was passed by the Scottish Parliament on 6 March 2002 and received the Royal Assent on 11 April 2002. The opinions of the court in the Lord Advocate's Reference (No 1 of 2001) were given on 22 March 2002.    [Back]

Note 69   2002 SLT 466.    [Back]