Consent in the context of rape: a discussion

by Ng Teng Wei

INTRODUCTION

In R. (F) v Director of Public Prosecutions,1 the English High Court examined the issue of consent in a case of rape. The case was an application for judicial review by the claimant against the Director of Public Prosecutions’ refusal to prosecute the intervener for rape and/or sexual assault.

THE UK DECISION

In R. (F) v Director of Public Prosecutions,2 the claimant had suffered from an abusive relationship with her former partner, with whom she had been in an Islamic marriage with, though they had never lived together. The proceedings came about after the claimant had agreed to sexual intercourse with the intervener with the condition that the intervener would not ejaculate into the claimant’s vagina. The intervener, however, ejaculated inside the claimant. The claimant subsequently made a police report, but the Director of Public Prosecutions decided not to prosecute. Hence, the claimant claimed judicial review of the refusal to prosecute.

The Lord Chief Justice, delivering the judgment, first considered the case of Assange v Swedish Prosecution Authority 3 [Assange], where the accused, while knowing that the victim’s prerequisite to consent to sexual intercourse was for the accused to wear a condom, consummated unprotected sexual intercourse with the victim. In Assange, the English High Court held that:

“if [the victim] had made clear that she would only consent to sexual intercourse if Mr Assange used a condom, then there would be no consent if, without her consent, he did not use a condom, or removed or tore the condom without her consent. His conduct in having sexual intercourse without a condom in circumstances where she had made clear she would only have sexual intercourse if he used a condom would therefore amount to an offence under the Sexual Offences Act 2003, whatever the position may have been prior to that Act.”4

The Lord Chief Justice then noted that ejaculation is irrelevant to the definition of rape under Section 1(1) of the Sexual Offences Act 2003,5 but that ejaculation may be an aggravating factor in sentencing.6 The Lord Chief Justice then noted the ‘choice’ is crucial to the definition of consent in Section 74 of the Sexual Offences Act 2003, 7 and concluded that:

“[i]f before penetration began the intervener had made up his mind that he would penetrate and ejaculate within the claimant’s vagina, or even, because “penetration is a continuing act from entry to withdrawal” (see s.79(2) of the 2003 Act) he decided that he would not withdraw at all, just because he deemed the claimant subservient to his control, she was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly her consent was negated. Contrary to her wishes, and knowing that she would not have consented, and did not consent to penetration or the continuation of penetration if she had any inkling of his intention, he deliberately ejaculated within her vagina. In law, this combination of circumstances falls within the statutory definition of rape.” 8

THE LAW

The English High Court had basically laid down 3 rules for the law of consent in sexual offences:

  1. If there are preconditions to sexual intercourse, default of a precondition before or at the point of penetration would amount to a withdrawal of consent to sexual intercourse. (The principle as laid out in Assange.)
  2. Accidental default of a precondition to sexual intercourse would not negate consent.
  3. Penetration with the intention of defaulting a precondition to sexual intercourse, with the defaulting of that precondition occurring during or after penetration, would negate consent. (Note that it is unclear whether the consent is withdrawn at the point of such formation of intention, or whether consent is withdrawn at the point of the default of the precondition, or whether consent is retrospectively negated ab initio after the occurrence of the default of the precondition. Whether or not this matters is unclear.)

These three rules reflect this idea of “conditional consent”. The underlying principle behind these three rules is that the freedom of choice of both parties has to be respected. 9 When a party is robbed of free choice, then sexual penetration would be regarded as rape.

THE LAW IN SINGAPORE

In Singapore, there is no statutory definition of consent, though Section 90 of the Penal Code 10 does indicate situations where consent is vitiated. However, in Public Prosecutor v Iryan bin Abdul Karim 11 [Iryan], the Singapore High Court adopted the definition in Ratanlal & Dhirajlal’s Law of Crimes: A Commentary on the Indian Penal Code 1860, Vol 2 12 that:

“[c]onsent on the part of a woman, as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge of the significance and the moral quality of the act, but after having freely exercised a choice between resistance and assent… Consent implies the exercise of free and untrammelled right to forbid or withhold what is being consented to (emphasis mine); it is always a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former.” 13

This definition places emphasis on free choice, similar to s74 of the UK Sexual Offences Act 2003.14 Hence, it is likely that Singapore would adopt a similar stance to that of the UK High Court if a similar case were to be pleaded before the Singapore Courts.

However, there are some points that require clarification with regards to the law of consent in this regard.

A. Consent to What?

Firstly, what is the focus of the law of consent in a case of rape? Where consent has been given for penetration, though there is forbiddance of internal ejaculation, does the law of consent consider merely whether there was consent to sexual penetration, or is it much more than that? Section 375(1) of the Penal Code 15 states:

“Rape

375 —(1) Any man who penetrates the vagina of a woman with his penis —

(a) without her consent; or

(b) with or without her consent, when she is under 14 years of age,

shall be guilty of an offence.” 16

This statute alone suggests that consent here refers to consent to sexual penetration alone. However, when read with the definition of consent in Iryan,17 it becomes clear that the express forbiddance to internal ejaculation must not be regarded separately from the consent to penetration, as the express forbiddance is part of the “freely exercised choice” to the assent to penetration and disregard for the forbiddance would amount to robbing the party of the freedom “to forbid or withhold what is being consented to”. Thus, the ruling in R. (F) v Director of Public Prosecutions 18 would appear to agree with that in Iryan.19 Nevertheless, it is to be noted that the Court of Appeal of Singapore has yet to endorse the Iryan 20 definition of consent, and it may yet reduce uncertainty if we were to include this definition in the Penal Code.21

B. Limits to Conditional Consent

Secondly, should there be a limit to the types of conditions which when in default would negate consent? Whilst the preconditions of using protection before penetration or requiring withdrawal pre-ejaculation should be awarded protection, what about other preconditions?

Consider the situation where a woman insists that the man must make a certain amount of cash before she would agree to intercourse. If the man lies, and sexual intercourse occurs, would consent have been negated such that the man has committed rape?22 Despite the immorality of such a lie, should the man be branded a rapist and be incarcerated?

Former Barrister Laura Perrins believes that “the criminal justice system – the greatest weapon in the State’s hand when condemning a citizen’s behaviour – should be slow to fill the vacuum left by a collapse in moral standards. Dr Jonathan Rogers, senior lecturer of laws at University College London, says: “I wouldn’t go so far as to say that there is no possible place for conditional consent, but we could certainly get by without using it.”23 Clearly there must be a line drawn when it comes to the type of pre-specified conditions which, in default, would negate consent. The English High Court did not test the boundaries of conditional consent, and this doctrine is yet untested in Singapore, though this could further muddy the waters in the difficult doctrine of consent. Yet, it may be that conditional consent, in light of R. (F) v Director of Public Prosecutions,24 would be a necessary tool in delineating whether consent had been given.

CONCLUSION

The doctrine of consent has always been difficult to grasp and delineate. However, this writer would agree that the ruling in R. (F) v Director of Public Prosecutions 25 is correct, though the court could afford to further explore the limits and boundaries of conditional consent.

It is interesting to note that this case has been hyped up by the media, proclaiming that there can be rape even when there is consent.26 This is not really true, as the consent is negated when the preconditions are not met, and thus there is no longer any valid consent to begin with. In reality though, behind all the fuss, let us all not forget that it is actually very simple. As Ally Fog puts it, “[i]f you do something to someone’s intimate bits (or with your intimate bits) which you know s/he has not consented to or is unable to consent to at that moment, you are committing an act of sexual assault or rape.” 27 There, it is as simple as that.


[1] [2013] 2 Cr. App. R. 21.

[2] Ibid.

[3] [2011] EWHC 2849.

[4] Ibid at [86].

[5] 2003 c 42 (UK).

[6] Supra note 1 at [21].

[7] Supra note 4.

[8] Supra note 1 at [26].

[9] Ibid.

[10] Penal Code (Cap 224, 2008 Rev Ed Sing).

[11] [2010] 2 SLR 15.

[12] Ratanlal and Dhirajlal, Ratanlal & Dhirajlal’s Law of Crimes: A Commentary on the Indian Penal Code 1860, Vol 2 (Bharat Law House, 26th Ed, 2007).

[13] Ibid at p 2061.

[14] Supra note 4.

[15] Supra note 8.

[16] Supra note 8, s 375(1).

[17] Supra note 9.

[18] Supra note 1.

[19] Supra note 9.

[20] Supra note 9.

[21] Supra note 8.

[22] Consider also the scenario of the alleged karate champion as mentioned by Nicholas J. McBride, Fellow, Pembroke College, Cambridge, on the first page of his article. Nicholas J. McBride, “Rape and Consent” <http://mcbridesguides.files.wordpress.com/2012/08/mcbride-rape-and-consent.pdf>, p 1.

[23] Laura Perrins, ” Did you know the legal definition of rape and ‘consent’ is changing? Here’s how” The Telegraph (19 September 2013), online: The Telegraph <http://www.telegraph.co.uk/women/womens-life/10319902/Did-you-know-the-legal-definition-of-rape-and-consent-is-changing-Heres-how.html>.

[24] Supra note 1.

[25] Supra note 1.

[26] “Sex consent could lead to rape charge, judges say” BBC News UK (24 April 2013), online: BBC <http://www.bbc.co.uk/news/uk-22281457>; “Sex with consent ‘can still be rape'” Metro News (24 April 2013), online: Metro <http://metro.co.uk/2013/04/24/sex-with-consent-can-still-be-rape-3665975>.

[27] Ally Fog, “Consensual sex and rape – it’s really very simple” The Independent Voices (25 April 2013), online: The Independent <http://www.independent.co.uk/voices/comment/consensual-sex-and-rape–its-really-very-simple-8588287.html>.