The #MeToo movement has inspired a complete reevaluation of sexual practices, and the ease with which power imbalances inherent in such a richly complicated society as modern Britain can create fertile ground for sexual abuse.

For a long time now legal academics have also called for a rethink in the way the law navigates these complicated dynamics.

The current law under the Sexual Offences Act 2003 (‘the Act’) creates an offence where a “person (‘A’)

  1. Intentionally touches another person (‘B’),
  2. The touching is sexual
  3. B does not consent to the touching, and
  4. A does not reasonably believe that B consents.”

The Act suggests that sexual acts are, prima facie, lawful, except for those cases where they are undertaken without consent, and without a reasonable belief in consent i.e. consent becomes a qualifying trigger for criminality.

Remember that all elements of an offence must be proved by the prosecution “beyond a reasonable doubt” a.k.a. the jury must be “sure” that all elements are present to convict.

Reformers in the field such as Jonathan Herring propose that, in the alternative, the law ought to make sexual acts criminal, but allow defendants the complete defence of consent.

Under this suggestion it is an offence where A touches B and the touching is sexual. But where A can successfully raise on the balance of probabilities (convince a jury that there is a more than 50/50 chance) that B consented. Then it is for B to make the jury “sure” that B did not consent.

This, it is suggested, would reframe the position in the eyes of perpetrators, potential perpetrators, and very importantly (in the light of Sarah Everard, David Carrick and many others) the enforcers of the law to one which puts victim of sexual violence first.

In particular, the hope is, that rather than investigating complex situations for indications that a person made clear that they did not consent to acts (putting the burden on B), one should start the investigation considering whether sexual acts were engaged in, and then should interrogate A, rather than B about whether affirmative confirmation of consent did exist.

To paint a slightly clearer picture for the reader using a problematic but illustrative example one can look to the video promoted by Thames Valley Police which proposes the metaphor of sexual acts as drinking tea.

Under the current law, some would argue, A can operate under the assumption that B would like to drink tea until it is indicated to them, one way or another, that they should put the cup away and it is for B to make a jury “sure” that A did not reasonably believe that B wanted tea.

The alternative is that lawyers, police officers, and most importantly tea brewers, look for B to ask for tea before even turning the kettle on.

Detractors might suggest that this proposal flies in the face of the “common sense”. That sexual acts are a natural, legal, part of everyday life and should not be prima facie criminal. However, recent social revelations about the widespread nature of sexual abuse suggest that perhaps old-fashioned “common sense” has had its day.

For further information on this topic or on any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372 303444 or email or visit our Linkedin page.

This information was correct as at February 2023

Author John Szepietowski

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