Sexual offences — consent and the Sexual Offences Act 2003

Consent under s.74 SOA 2003 requires that a person "agrees by choice, and has the freedom and capacity to make that choice." This positive definition shifts from pre-2003 law's focus on absence of dissent to requiring autonomous choice. The framework operates through three tiers: (1) the general s.74 definition; (2) rebuttable evidential presumptions under s.75 (violence, detention, unconsciousness, etc.); (3) conclusive presumptions under s.76 (deception as to nature/purpose of act, or impersonation). For rape (s.1), the defendant must not reasonably believe in consent—an objective test qualified by "all the circumstances, including any steps A has taken to ascertain whether B consents" (s.1(2)). This architecture codifies sexual autonomy as positive choice while structuring judicial inquiry through graduated presumptions.

_R v B_ [2006] EWCA Crim 2945: Deception about age did not engage s.76(2)(a); conclusive presumptions confined to deceptions about the physical act itself, not attributes. Established s.76's narrow scope.

_R v Jheeta_ [2007] EWCA Crim 1699: False police threats inducing sex fell outside s.76 as complainant understood the nature of intercourse; conviction substituted under s.74. Confirmed distinction between deception as to act vs circumstances.

_Assange v Swedish Prosecution Authority_ [2011] EWHC 2849 (Admin): Non-use of condom contrary to condition did not vitiate consent under s.76 but could under s.74 if defendant knew of condition. Drew boundary between nature/purpose and circumstances.

_R v McNally_ [2013] EWCA Crim 1051: Gender deception vitiated consent under s.74 as "fundamental" to freedom of choice, though not under s.76. Controversial expansion of s.74 to identity attributes.

_R v Lawrance_ [2020] EWCA Crim 971: Covert condom removal vitiated conditional consent under s.74 where defendant knew of condition. Recognised that breach of known conditions negates agreement to the act that actually occurred.

Courts apply a three-stage analysis: (1) Does s.76 apply? Check for deception as to nature/purpose or impersonation—narrowly construed per _B_ and _Jheeta_. (2) Does s.75 apply? If specified circumstances exist (violence, detention, etc.) AND defendant knew, presumptions operate unless defence adduces sufficient evidence. (3) General s.74 inquiry: Did complainant agree by choice with freedom and capacity? For deception cases, distinguish active deception from non-disclosure (_McNally_). For conditional consent, ask whether condition was communicated, known, and deliberately breached (_Lawrance_). Throughout, assess reasonable belief considering all circumstances including steps taken to ascertain consent—a contextual objective standard, not pure subjectivity or pure objectivity.

Conflating s.76 and s.74: Material deceptions (HIV status, wealth) do NOT trigger s.76 unless about nature/purpose of physical act—analyse under s.74 instead. Mischaracterising reasonable belief: Not purely subjective (honesty insufficient) nor purely objective—considers defendant's circumstances within reasonableness framework. Misunderstanding s.75: Creates evidential not legal presumption; once rebutted, jury decides without reference to presumption. Ignoring conditional consent: Post-_Lawrance_, must analyse whether conditions were set, communicated, known and breached.