Consent

Consent

It should be easy enough, shouldn’t it? Yes or no?

As always, life and the law are more complicated than that, and the issue of consent - in the context of alleged sexual offences - is not so simple.

What is consent?

A person consents if she or he agrees by choice, and has the freedom and capacity to make that choice.

Can a drunk person consent?

Yes, drunken consent is still consent, but this is where problems can arise. If a person loses their capacity to choose, through drink, then he or she is not consenting.

Consent is frequently the issue in many rape cases where it is one word against the other.

The Courts have identified the following focus points:

1.    Did sexual intercourse take place?

2.    Did the complainant consent to sexual intercourse?

3.    Did the complainant have the freedom and capacity to consent?

4.    Did the defendant reasonably believe that the complainant was consenting? (this does not apply in all cases).

Who decides?

At trial, it will be for the jury to determine issues of capacity and consent having heard all of the evidence.

How do you prove consent?

In the absence of a written contract, and even then, there could be doubts, it is for the jury to decide having heard the evidence.

In some cases, it is not enough for a defendant to simply say that he or she believed the other person was consenting, there must be evidence that he or she had a reasonable belief that there was consent. This would include considering any steps taken by the defendant to ascertain the complainant was consenting.

The situation could also arise where consent is given on condition, for example, that a condom is used. If one is not used, then the “consent” may be vitiated.

There have also been cases where a female has pretended to be a male and had intercourse on that basis. The defendant was guilty because the complainant said that she would not have consented if she had known that the defendant was female.

 

This article is a brief analysis of potential issues surrounding consent. As you can see, this is an area that would require careful assessment and expert advice.

The problem with many alleged sexual offences is that they require a jury to examine intimate factual scenarios, often clouded by drink or drugs, where there is seldom any independent evidence to assist one way or the other. It is our job to present the strongest case possible.

Contact me on 07766001774 or email me (contact@crimelawyer.co.uk) for further information.

Revenge Porn

Revenge Porn

"Revenge porn", the criminal act of posting online intimate sexual pictures/video of a person without their consent, carries a potential prison sentence of up to 2 years. 

Celebrity vlogger Chrissy Chambers has taken the matter one step further in launching an action in the High Court designed to secure no further infringement of her rights, and substantial financial damages.

Her ex-partner allowed six sexual videos to be uploaded to the adult site redtube.com, with Ms Chambers being identified by name in 3 of those videos.

The videos were filmed in her home, but without her consent, and showed sexual activity between her and her partner.

She argued in Court that this had caused her 'serious distress', resulting in post-traumatic distress disorder (PTSD).

In the 19 months that the videos were online a large number of people had viewed them, including some people who wrote to her expressing their displeasure at the belief that she was 'intentionally involved in pornography', to such a degree that they did not wish to watch her offerings on YouTube.

In a settlement agreed by the High Court on 18 January 2018, her partner accepted that the posting of the videos was in breach of confidence, misuse of private information and a breach of her article 8 rights (the right to privacy).

To provide future protection, copyright in the videos was transferred to her.

While this is not the first action of its kind (singer Tulisa Contostavlos brought a similar case in 2012), it is notable that Ms Chambers has actively sought publicity about this case, when she could have chosen anonymity.

The legal action was funded by way of a crowd-funding campaign, itself designed to raise public awareness of this issue.

By doing so, she has put this issue into the public domain, and it may well act as a deterrent to those thinking of doing something similar in future, but also a reminder to victims that there could be an easy route to substantial damages, provided of course that the person committing this unlawful act has the means to pay them.

 

To discuss this, or any other matter, please contact me on +447766001774 or contact@crimelawyer.co.uk for prompt specialist advice.