DC Marsh is investigating a rape allegation. The complainant says she was asleep when the defendant penetrated her. The defendant says he believed she was consenting. Which of the following is correct?
- AThe defendant is not guilty if he genuinely believed the complainant was consenting - belief in consent is a complete defence regardless of the circumstances
- BThe defendant is guilty of rape only if it can be proved the complainant was actually unconscious rather than merely asleep
- CThe complainant's being asleep raises a rebuttable presumption of non-consent but the defendant can rebut this by showing he had reasonable grounds for belief in consent
- DA person who is asleep is presumed not to consent under s.75 Sexual Offences Act 2003 and the defendant must adduce evidence to rebut that presumption
Show answer and explanation
Answer: D
s.75 Sexual Offences Act 2003 sets out evidential presumptions about consent. One applies where the complainant was asleep or unconscious at the time of the relevant act. Where this presumption applies the complainant is presumed not to have consented and the defendant is presumed not to have reasonably believed in consent unless sufficient evidence is adduced to raise an issue as to this. This is a presumption the defendant must provide evidence to rebut - the burden then shifts to the prosecution to disprove beyond reasonable doubt.
s.75 Sexual Offences Act 2003; s.1(2) Sexual Offences Act 2003
s.75(2)(d): the complainant was asleep or otherwise unconscious at the time of the relevant act - the complainant is to be taken not to have consented and the defendant is to be taken not to have reasonably believed in consent unless sufficient evidence is adduced to raise an issue.
- A: Under s.1(2) SOA 2003 the test for belief in consent is whether it was reasonable - not merely genuine. A bare claim of belief in consent where the complainant was asleep will not suffice without reasonable grounds.
- B: s.75 SOA 2003 expressly includes a complainant who was asleep as well as unconscious. There is no requirement to prove total unconsciousness.
- C: This mischaracterises the nature of the presumption. Under s.75 non-consent and absence of reasonable belief in consent are presumed unless the defendant adduces evidence to rebut. The burden structure is not a simple rebuttable presumption at large.