Sexual Offences Act 2003, section 75

Evidential presumptions about consent

Part 1 Sexual Offences

(1)If in proceedings for an offence to which this section applies it is proved—

(a)that the defendant did the relevant act,

(b)that any of the circumstances specified in subsection (2) existed, and

(c)that the defendant knew that those circumstances existed,

the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.

(2)The circumstances are that—

(a)any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him;

(b)any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person;

(c)the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act;

(d)the complainant was asleep or otherwise unconscious at the time of the relevant act;

(e)because of the complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented;

(f)any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.

(3)In subsection (2)(a) and (b), the reference to the time immediately before the relevant act began is, in the case of an act which is one of a continuous series of sexual activities, a reference to the time immediately before the first sexual activity began.

Definitions used in section 75 1

proceedings

(c) “proceedings” includes proceedings before a service court, and

Defined in s.137(1) · see it in the full Act

Cases considering section 75 20

Hutchings, R v

[2019] EWCA Crim 1042 · 22 February 2019

The Court held that the evidential-presumption directions were sufficient when read as a whole and tailored to the disputed facts. It rejected the argument that the directions wrongly made the statutory presumption irrebuttable. (see paras [39]-[43]) The Court held that the jury had been properly directed to decide whether violence or threats of immediate violence existed at the relevant time. On the competing factual accounts, no further direction on a hypothetical rebuttal of the presumption was required. (see paras [39]-[42])

Mba, R. v

[2012] EWCA Crim 2773 · 4 December 2012

Section 75(1) creates an evidential presumption, but the jury must remain clear that the Crown bears the criminal burden of disproving consent and reasonable belief. The court held that the section 75 route need not invariably be abandoned once evidence raises an issue, provided the jury receives that essential direction (see paras [21]; [22]; [24]). The court applied the provision concerning violence or fear of immediate violence as the statutory circumstance giving rise to the evidential presumption. The jury’s unanimous verdict on the connected violence count established facts which, independently of the presumption, negated consent and reasonable belief (see paras [24]; [25]).

Ciccarelli, R. v

[2011] EWCA Crim 2665 · 3 November 2011Interprets

The court held that section 75 creates evidential presumptions about consent and reasonable belief in consent. It does not alter the prosecution’s ultimate burden once sufficient evidence raises an issue. (see paras [3]; [18]) The court held that the presumption is displaced only where sufficient evidence raises an issue about consent or reasonable belief. The evidence must be more than fanciful or speculative, and a bare assertion of belief does not suffice. (see paras [18]; [20]-[21]) The court held that the requirement that the defendant did the relevant act was established on the evidence. (see para [16]) The court held that a specified statutory circumstance was established, namely that the complainant was asleep or unconscious. (see para [16]) The court held that the requirement that the defendant knew the statutory circumstance existed was established on the evidence. (see para [16]) The court treated subsection (2) as identifying circumstances of vulnerability or disadvantage in which consent is realistically unlikely. The evidential issue may nevertheless be left to the jury if sufficient evidence raises it. (see paras [3]; [21]) The court applied the circumstance that the complainant was asleep or otherwise unconscious at the time of the relevant act. That circumstance engaged the evidential presumption in section 75(1). (see paras [3]; [15]-[16])

What each judgment says about section 75 is in the case-law panel in the full Act.

Explanatory note

140.This section applies to the offences of rape (section 1), assault by penetration (section 2), sexual assault (section 3) and causing a person to engage in sexual activity without consent (section 4). The section provides for presumptions that may be challenged by the defendant. The presumptions arise in the circumstances described in subsection (2). The difference between paragraphs (a) and (b) of subsection (2) is that paragraph (a) covers violence and threats of violence used against the complainant whereas paragraph (b) covers violence and threats of violence used against a person other than the complainant. The violence or threat must occur either at the time of the relevant act or immediately before it began.

141.The effect of subsection (3) is that where, for example, the relevant act for which the person is being prosecuted is penetration, but the penetration is the culmination of a series of sexual activities, then if the violence or threat occurred immediately before the first sexual activity (as opposed to before the penetration), the presumptions still arise.

142.Where the prosecution proves that the defendant did a relevant act (as defined in section 77), that the circumstances described in subsection (2) existed and that the defendant knew that those circumstances existed, the complainant will be presumed not to have consented to the relevant act and the defendant will be presumed not to have reasonably believed that the complainant consented. In order for these presumptions not to apply, the defendant will need to satisfy the judge from the evidence that there is a real issue about consent that is worth putting to the jury. In practice (although this is not mentioned in the Act) the evidence produced may be from evidence that the defendant himself gives in the witness box, or from evidence given on his behalf by a defence witness, or resulting from evidence given by the complainant during cross-examination. If the judge is satisfied that there is sufficient evidence to justify putting the issue of consent to the jury, he will so direct; if not, he will direct the jury to find the defendant guilty.

All the explanatory notes for the Act