With the new law, the prosecution can establish one of the circumstances provided in sections 75 or 76, rather than proving that there was no consent with the regular burden of proof.
Section 76 of SOA 2003 states the conclusive presumptions that consent will not exist, namely when there has been
- deception as to the nature or quality of the act; or
- impersonation of another.
Evidential presumptions about consent, as provided in section 75, can be inferred in the following circumstances:
- use of violence or fear of violence towards the victim;
- violence or fear of violence against another person;
- the victim was unlawfully detained at the time of the act, and the defendant was not;
- the complainant was asleep or otherwise unconscious;
- the victim’s physical disability makes them unable to communicate whether they consent;
- the complainant was administered a substance, with his consent, by any person which caused him to be stupified or overpowered.
Freedom and Capacity
Section 74 applies in cases where there are no conclusive or evidential presumptions, covered in sections 75 and 76, or where the defendant rebuts the evidential presumption of no consent. The definition focuses on the complainant’s ability to make a choice, rather than their actual consent or lack of it. In R v Kirk, it was examined whether the victim had in fact the freedom to choose whether or not to consent to sexual intercourse due to her vulnerable state. The Court of Appeal upheld the rape conviction despite the lack of obvious pressure placed on the complainant to consent. It highlighted that undue pressure can take many forms.
It was held in R v Howard (1965) 50 Cr App R 56 that to have sufficient capacity to consent to sexual intercourse, a complainant must have sufficient knowledge or understanding of the act to be able to decide whether or not to agree. Similarly, in the case of R v Cooper  1 WLR 1786, the question to ask is whether the complainant is able to understand the information relevant to the decision they must make (to consent or not) and secondly, whether they are able to weigh that information to be able to make a choice.