In a recent judgement the Supreme Court has clarified how trial judges should explain the law on rape to juries, especially regarding the defence that the accused believed that the woman consented to sex. Belief that the woman might be consenting to sex does not leave this defence open to an accused. The court found that an honest belief by an accused that the woman consented would be a good defence for the accused even if the belief is unreasonable.
By way of background, the accused, named as CO’R in the case, was convicted and sentenced in 2012 of the rape of his mother. The accused testified that he believed that the sex was consensual and counsel for the defence’s closing speech stressed that all that was needed to raise the defence was honest belief as to consent, however unreasonable.
CO’R appealed his conviction, with one of the grounds for appeal being that the trial judge’s direction to the jury was inadequate. It was argued that the trial judge’s charge to the jury was inadequate as it did not make it clear to the jury that legal references made by counsel in their closing arguments do not bind the jury, and that directions of law are only to be taken from the judge himself. Delivering a unanimous judgment on behalf of the Supreme Court dismissing the appeal, Mr Justice Peter Charleton held that the trial judge’s mistaken direction had actually been to the benefit of the accused.
Mr Justice White in the Central Criminal Court told the jury that if “an accused man believed that the woman might be consenting…the appropriate verdict is not guilty”. The Supreme Court held that this direction inadvertently broadened the defence of honest belief beyond what the law proscribes.
The Criminal Law (Rape) Act 1981 Act stipulates that the mental element of rape is satisfied either where the accused knows that the woman is not consenting or is reckless as to whether she is consenting. That is to say, as Mr Justice Charleton put it, if an accused is aware that there is a real risk that the woman does not consent, but proceeds anyway, this falls within the statutory definition of the offence of rape. Mr Justice Charleton emphasised that there can be no consent where the woman is no condition to give, including situations of “insensibility”, where the woman is in an intoxicated or drugged state, and as such is unable to actively communicate her consent.
As regards future direction by trial judges to juries in rape cases, Mr Justice Charleton held that the content of the direction depends on the facts of the case, but if the defence of honest belief is raised, this does not require a jury to believe an “obviously false” story, or to accept that the accused believed that the woman merely might have consented. The defence is only open to the accused if he believed that the woman was actually consenting.
Following the Supreme Court judgment, a Department of Justice spokesperson said a statutory definition of consent would be brought by way of the Criminal Law (Sexual Offences) Bill.
Click here for the full judgment in DPP v CO’R.