Is ‘advance consent to sexual activity’ a defence?

Can a sleeping person consent to sexual activity? Common sense suggests not: consent requires capacity; and capacity, self-evidently, requires consciousness.

But what about consent given in advance? What if the sleeping person, before they fell asleep, said they consented to being sexually touched in their sleep? Even actively requested it? This issue arose in a recent case, and it bears some examination. We will consider the real-life issues through the fictional case study of R v Alice.

R v Alice

Alice is in a sexual relationship with Ben. Ben tells Alice that he would love to wake up in the morning to find her sexually touching him. The next morning, Alice does so, and Ben, as expected, is appreciative.

However, the next day Ben discovers that Alice has been sleeping with Ben’s brother. The couple split up amidst maximum hostility, and Ben goes to the police, alleging that she sexually assaulted him by touching him in his sleep.

Does Alice have a defence?

To decide this, we need to look at the provisions of ss74-76 of the Sexual Offences Act 2003.

Section 74 provides a general definition of consent:

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

Any sexual activity where one party is not consenting according to the s74 definition will necessarily be an offence. It’s an economically worded definition that covers a multitude of situations, and in most instances it’s only to s74 that we need to look when considering consent – indeed it’s arguable that the drafters of the Act might well have left it at that.

However, they didn’t leave it at that, and the 2 sections that follow establish situations in which there will be a presumption of absence of consent. (Whether these sections improve on s74, or simply muddy the waters, is an interesting topic for consideration; but one that deserves an essay of its own). The presumptions in s75 are rebuttable by evidence to the contrary; those in s76, irrebuttable. The relevant part for Alice is s75(2)(d):

(1) If in proceedings for an offence to which this section applies it is proved—

(a) that the defendant did the relevant act,

(b) that any of the circumstances specified in subsection (2) existed, and

(c) that the defendant knew that those circumstances existed,

the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.

(2) The circumstances are that…..

…… (d) the complainant was asleep or otherwise unconscious at the time of the relevant act…..

Ben was asleep. Alice knew he was asleep. She did in fact touch him sexually. The presumption therefore is that he was not consenting, unless she can adduce evidence that either he did consent, or that she reasonably believed he did.

We’ll consider the two defences separately.

Consent

Ben has clearly indicated, while awake, that he wishes to be touched while he is asleep – in effect, he has given his consent in advance, or at least tried to. Is “consent in advance” a concept known to law? The general rule, after all, is that consent must be contemporaneous with the act, for obvious reasons – a person may, after all, change their mind. The common law, prior to the 2003 Act, held that a sleeping person was not consenting [Fletcher (1859) Bell 63]. The Sexual Offences Act requires capacity as an essential component of consent. For Ben to be able to give consent in advance — even where this is his clearly expressed wish – there would need to be some express provision allowing consent given while he has capacity to be “carried over” to a time when he does not. The 2003 Act provides no such provision.

Turning to the authorities is of limited assistance, since there are none in this jurisdiction that are directly relevant. As Rook and Ward [Rook and Ward on Sexual Offences 5^th Ed] say:

“The Court of Appeal has yet to tackle the problem of a pre-arranged sober agreement to have sex followed by the complainant losing consciousness. Would this be an exception to the normal rule that the relevant time for the purposes of determining consent is the time of the sexual activity?”

They cite (as does Archbold) the case of HM Queen v JA and Attorney General of Canada and Women’s Legal Education and Action Fund, in which the Canadian Supreme Court considered almost exactly this point (although in relation to unconsciousness rather than sleep), and concluded that:

Parliament had defined consent in a way that required the complainant be conscious throughout the sexual activity in question; the definition did not extend to advance consent to sexual acts committed while the complainant was unconscious. The legislation required ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and that individuals engaging in sexual activity are capable of asking their partners to stop at any point. [Rook and Ward on Sexual Offences 5^th Ed]

Though obviously not binding, this is likely to be of some persuasive force in the UK. If so, this is not good news for Alice, since (if applicable) it necessarily means she cannot rely on the defence of consent. This is a view shared by commentators Jennifer Temkin and Andrew Ashworth [The Sexual Offences Act 2003: (1) Rape, sexual assaults…, Crim. L.R. 2004, May,…] in a detailed analysis of the 2003 Act published shortly after its coming into force:

“it has always been the law that consent must be present at the time of the sexual act. This means that consent is necessarily regarded as absent once it is proved beyond doubt that C was asleep or unconscious at the time sexual intercourse took place.”

If consent requires capacity (as we know it does), and a sleeping person lacks capacity (as surely they must), then this seems self-evidently true: a sleeping person cannot consent. Why, then, is sleep in s75 of the Sexual Offences Act — the rebuttable presumptions — rather than the irrebuttable ones of s76? Plainly, in placing it in s75, the legislature must have intended that there could in some circumstances be a defence of consent and/or reasonable belief in consent available. it is difficult to see how to square this with the requirement for consent to be contemporaneous. Temkin and Ashworth in fact argue that it is wrongly placed, and belongs in s76. While this would be hard luck on Alice, it is in my view the more logical position.

However, in s75 it remains, and we have to make some sort of sense of the position. The question is considered, briefly and somewhat confusingly, by the Court of Appeal in R v Gavin White,[[2010] EWCA Crim 1929, 2010 WL 3166506] in which the appellant had been tried for taking photographs of himself digitally penetrating the complainant while, on her account, she was asleep and not consenting. During deliberations, the jury asked this question:

“If she gave consent beforehand and then fell asleep during the photo preparation, is the consent still current?”

The Court of Appeal commented:

“It seems to us the correct answer to the question would have been that the appellant would have a defence in those circumstances.”

The comment was obiter (the real issue in the case being when is it right to direct a jury in the terms of s75 rather than s74), and so remains open to question — as well it might, because it raises several of them. Did they mean that consent given while awake remained valid, as per the terms of the jury’s question, if the giver of that consent subsequently fell asleep? If so, then this gives the green light to the notion of advance consent – but, as we have seen, this is not consistent with any principle of law. Was it a suggestion that, while consent cannot in general be given in advance, this will be different where there is a continuing act before and after the loss of consciousness? If so, for how long? Will sexual activity that continues for five minutes thereafter be lawful? What about two hours? Did they in fact mean that the applicable defence, despite the terms of the jury’s question, would be reasonable belief in consent rather than consent itself? The court may, understandably, have been trying to avoid the obvious moral absurdity of a situation where, if two people are engaged in consensual sexual activity and one of them nods off, the other immediately becomes liable for prosecution. But however understandable, it surely cannot be right that consent given while awake remains valid once the giver has fallen asleep.

Which conclusion (if it is right) unfortunately puts Alice – who has surely done nothing morally wrong at all – in some difficulty. Of course in reality someone in Ben’s situation is highly unlikely to complain to the police; if he did, the matter is unlikely to pass the public interest test and be charged; and if by chance it did go to trial, a jury would be likely to be sympathetic. Alice is probably not, in reality, in a lot of danger. Nonetheless, she would no doubt prefer to be in none.

Reasonable belief in consent

If consent is not available as a defence to Alice, can she instead rely on the defence that she reasonably believed Ben was consenting? Rook and Ward are confident that reasonable belief will apply in a situation like Alice’s:

“the necessity for the prosecution to prove that the defendant did not reasonably believe that the complainant was consenting will ensure that no injustice arises”.

They receive some support for this view from the Court of Appeal in Ciccarelli [[2011] EWCA Crim 2665, 2011 WL 5105580], a case concerning sleep:

 “15.  It was not in dispute that the appellant sexually assaulted the complainant when she was asleep and when he knew that she was asleep. Further, it was not in dispute that the complainant did not, in fact, ever consent to be touched sexually by the appellant in any way. The only question was whether sufficient evidence had been adduced for the issue whether he reasonably believed that the complainant consented to him touching her sexually to be raised. If there was, the issue would be left to the jury.”

The issue in Ciccarelli was sufficiency of evidence; but the very fact that the question was considered makes it, at least tangentially, support for the view that reasonable belief will be available as a defence for Alice.

I am not as sanguine that it will. The High Court in Assange v Swedish Prosecution Authority [[vii] 2011 EWHC 2849 (Admin), 2011 WL 5077784] commented that

“it is difficult to see how a person could reasonably have believed in consent if the complainant alleges a state of sleep or half sleep.”

On a common sense view – where the defendant is aware the other party is sleeping – that must be right.

In which case, how can Alice rely on reasonable belief in consent? After all, she knows Ben is asleep. She does not believe he is pretending to be asleep while actually awake and consenting. If “consent” means “contemporaneous consent” then she does not believe that he is giving it, however benign her motives.

The only way to square this circle is to allow that reasonable belief doesn’t have to mean “reasonable belief that a person is currently consenting” but can also encompass “reasonable belief that consent given earlier still counts as consent now the person is asleep.” It is not, therefore, a belief as to the circumstances, but as to the law. But ignorance of the law, famously, is no defence; can an erroneous belief that the law considers Ben’s advance consent valid possibly be a defence?

And if reasonable albeit erroneous belief as to the law can serve as a defence for Alice, then what, Dear Reader, would the position be for you or me? I am writing, and you are reading, an essay that says consent must be contemporaneous. Unlike Alice, we know that a sleeping person cannot consent, and that consent given in advance is a concept unknown to law. Does that mean the defence would be available to her, but not to us?

And so we spiral down into absurdity. Of course, in reality, situations like Alice’s are unlikely to arise in the courts very often, and if one did, it’s quite possible that a sympathetic court might find some sort of workaround to allow for the possibility of an acquittal. But ultimately what is needed is for the question of prior consent to be addressed head-on by the Court of Appeal, for the moral complexities it raises to be acknowledged, and for a way through them to be formulated that does not do violence to principles of law and logic. Until then we are left with a situation where the right-angled grid of the law fits very ill over the curves and bumps of reality.

This article entitled “Is Advance Consent to Sexual Activity” a Defence?” was written by Kate Roxburgh. For further information on her practice or to instruct Kate, please contact Robin Driscoll, Senior Criminal Clerk on Telephone: 020 3334 4253 or Email: pdsclerks@justice.gov.uk