Breaking down consent

Last week we looked at the definition of consent in Guyana’s Sexual Offences Act 2010. We noted some key terms in that definition: competent”, “informed consent”, and “freely given agreement”. We also examined what these terms meant, and their role in determining whether “true consent” is given to sexual activity, including sexual intercourse. Importantly, we saw how the use of fear, force, or fraud can negate or cancel consent given in those circumstances, and we looked at cases in which fear, force, or fraud were used to get consent to sexual activity, and how courts are likely to approach such situations. We also learned that any action which induces sexual activity by fraud or threats other than threats of force, or other intimidation may be enough to cancel consent given under those circumstances.

As promised, today we will examine statutory evidential and conclusive presumptions the law makes regarding consent. Like the definition of consent, these presumptions are found in the Sexual Offences Act 2010, and it may be interesting to know that many of these statutory presumptions are inspired by previous court decisions.

Before examining these evidential and conclusive presumptions, it is important for us to note that to prove sexual assault or rape, prosecutors usually must prove that the relevant sexual activity took place; that the alleged victim did not consent; and/or the accused person could not reasonably believe that the alleged victim was consenting. Thus, regarding consent, there must not be consent, or a reasonable belief in consent. These two things are not the same. Consent just refers to whether there were words of overt actions by an alleged victim which communicated that they wanted to engage in sexual activity. Reasonable belief in consent is different, and somewhat more complicated. For there to be reasonable belief on consent, there must be something, whether conduct, conversation etc, by the alleged victim, which made the accused reasonably believe that the alleged victim was consenting to sexual activity. Quite interestingly, even if an alleged victim was not, in fact, consenting, an accused may still be acquitted of sexual assault or rape if there is evidence that he or she could have, all things considered, reasonably believe that the alleged victim was consenting.

Evidential presumptions

Where there is clear evidence that a person accused of a sexual offence engaged in sexual activity; that certain circumstances existed (the evidential presumptions found at section 7 of the Sexual Offences Act, some of which are examined below); and the accused was aware of these circumstances, the law presumes that the alleged victim did not consent to the sexual activity, and that the accused person could not have reasonably believed that they were consenting. These presumptions may be rebutted, however, where there is evidence suggesting that the alleged victim consented, or that the accused could not have reasonably believed that the alleged victim was consenting to the sexual activity. Finally, what we will see is that the evidential presumptions stated at section 7 of the Sexual Offences Act mostly relate to conduct which may evoke fear or constitute force or intimidation. We will now look at some of these evidential presumptions.

Using violence or the threat of violence at the time of or immediately before sexual activity against complainant

Section 7 (2) (a) of the Sexual Offences Act states that where an accused used violence against a an alleged victim at the time of sexual activity, or immediately before the sexual activity began, thereby causing the alleged victim to fear that violence would be used against them in that moment, the law presumes that the alleged victim was not consenting to that sexual activity, and that the accused could not reasonably believe that the complainant was consenting to sexual activity in those circumstances. For those of you who read last week’s column, you will realise that this presumption is similar to the rule that force, or threat of force used to obtain consent actually negates any consent given under those circumstances.

Causing the complainant to fear violence will be used against someone else

Section 7 (2) (b) of the Sexual Offences Act states that where an accused caused the alleged victim fear that violence was being, or would be used against another person at the time of or immediately before the accused engaged in sexual activity with the complainant, the law presumes that the alleged victim was not consenting, and or that the accused could not have reasonably believed that the alleged victim was consenting to whatever sexual activity took place. Again, this presumption is similar to legal principles laid down in case law. There have been instances where people have hurt or threatened to hurt someone close to an alleged victim (such as a child, sibling, or parent) in order to coerce them into engaging into sexual activity. The courts have said, and this statutory presumption now holds, that any consent given in those circumstances is not true consent, and no person who obtained consent in that way could reasonably believe that the complainant was consenting.

Unlawful detention of the complainant

Where an alleged victim of a sexual offence was unlawfully held or locked up/away (such as in a house, a bedroom, or in a car) at the time an accused engaged in sexual activity with them, the law presumes that the alleged victim was not consenting to that sexual activity, and or that the accused could not believe that the alleged victim was consenting to any sexual activity in those circumstances. This presumption was also taken from legal principles laid down in court cases. There are several instances in which the perpetrators of sexual offences have unlawfully locked their victims in rooms or other spaces while they demanded sex from them. Being unlawfully detained is enough to cause someone to fear for their safety, and it is reasonable to conclude that when a person is unlawfully locked up, and the person who locked them up demands or even politely asks to engage in sexual activity with them, the totality of those circumstances would be enough to bring them to agree to sexual activity, even if they would not in different circumstances. As such, consent given in those circumstances is usually cancelled, and or the court would say that a person who demanded sex in such circumstances could not reasonably believe that the alleged victim was consenting. Incidentally, unlawfully detaining someone, without more, is also an offence in Guyana under the Kidnapping Act Chapter 10:07, and given the prevalence of such occurrences in Guyana, perhaps we can examine the provisions of that Act in a different series. Indeed, there have been more than one occasions where I have seen men scoop women up in cars against their wills, then drive off.

Drugging a person

There are several circumstances under which a person being under influence of some substance, including alcohol or some other drug, can give rise to claims of sexual offences: (1) where the alleged victim knowingly and willingly ingested the substance, and (2) where they did not. This presumption is concerned with the latter scenario, that is, where a person who is given, or who is made to take a substance which can cause the alleged victim to be stupefied or overpowered at the time of any sexual activity. Such conduct may include: (1) giving the alleged victim alcoholic beverages while telling them that the beverage is non-alcoholic; or (2) dropping some kind of drug (which can stupefy a person or which can cause them to be overpowered) into a person’s drink or food when without them knowing. In any such case, any consent given under the influence of the substance is negated, as the law will presume that the alleged victim did not consent and or the accused could not reasonably believe that the alleged victim was consenting while they were under the influence of a substance they did not consent to ingesting, or where they did not are not even aware that they are under the influence of a substance they did not concern to ingesting.

The presence of other people was used to intimidate the alleged victim

Where the presence of more than one person was used to intimidate an alleged victim at the time the alleged victim consented to any sexual activity, the law will presume that the alleged victim did not, in law consent, and that the accused person or persons could not reasonably believe that the alleged victim was consenting to the sexual activity under those circumstances. This is an important presumption. There are many instances where victims of sexual offences do not verbally refuse sexual advances, and may even seem to, by overt acts, consent to sexual activity when they are placed in a situation where there are multiple possible offenders. In those circumstances, fearing for their safety, it is understandable why an alleged victim would submit to advances for sexual activities instead of verbally or physically declining such advances. In this way, this presumption is related to the common law principles that intimidation is sufficient to negative or negate consent. Indeed, no person should be able to intimidate another into consenting to sexual activities, then rely on that consent to argue that the conduct does not constitute an offence. This will be important to any person who has been in such a situation, or who may find themselves in such a situation.

The alleged victim was asleep or otherwise unconscious at the time of the sexual activity

A person who is asleep or unconscious is unable to consent to any sexual activity which commences while they are asleep or unconscious. As such, the law presumes that an alleged victim who is asleep or otherwise unconscious when an accused engages in sexual activity with them is not consenting to that sexual activity, and or that the accused could not reasonably believe that the alleged victim was consenting to any sexual activity initiated while they were asleep or otherwise unconscious. As with all the presumptions examined in this column today, this presumption is rebuttable. For example, if there is evidence that the alleged victim told the accused that it would be okay to initiate sexual activity with them on that occasion while they were asleep, or that they would like to try it, but an occasion was not specified, this may be evidence that the accused could have reasonably believed that the alleged victim was consenting. This is referred to as consensual non-consent, or CNC, and can

be quite problematic, though increasing in popularity. If persons intend to engage in this kind of sexual activity, communication is extremely important, and the nature of the relationship is key. My advice would be that no person should engage their partner while they are asleep unless they have received clear consent from them that it would be okay to do that. But even in those circumstances, human beings are unpredictable, and consent may be given tonight to do something tomorrow, but the feelings of tomorrow may change a person’s mind. Thus, the safest route would be to obtain express consent before all sexual activities, preferably verbal consent. Unfortunately, however, human interactions are often not that straight-forward, and issues of consent are not always black and white.

Consent is initially given, but later withdrawn

Unfortunately, there is a common misconception by many members of the public that consent, once given, cannot be withdrawn until the sexual activity which has been given is concluded. In fact, I have heard stories told by men and women in cases where consent was given, but later withdrawn, but that withdrawal was ignored by the other party, men and women alike. It is important for the public to know that consent can be given, and withdrawn at any time before, or during the sexual activity which it was given for, because, well, people are allowed to change their minds, and sexual desire does not trump bodily autonomy. As such, where a person initially gave content to proposed sexual activity, but withdraws that consent before or during the sexual activity, and the accused does not stop, the law presumes that that the alleged victim did not consent to the sexual activity which took place after consent was withdrawn, and that the accused could not reasonably believe that the alleged victim was consenting to the sexual activity which took place after consent was withdrawn. As such, in all cases where a person initially consents to sexual activity, but then just before or after the activity commences, they withdraw that consent in words or actions, it is imperative to stop, for failing to do so can turn what was previously consensual sexual activities into sexual assault, rape, or some other sexual offence.

Conclusive presumptions

As stated earlier, in addition to evidential presumptions, there are also conclusive presumptions as it pertains to consent.

Section 8 (1) of the Sexual Offences Act provides that if it is proven that an accused engaged in sexual activity with an alleged victim, but that the accused deceived the alleged victim as to the nature and purpose of the sexual activity (see section 8 (2) (a)) or induced the alleged victim to consent by impersonating a person known to the alleged victim (see section 8 (2) (b)), it is to be presumed that the alleged victim did not consent to the sexual activity (see section 8 (1) (a)) and that the accused person did not believe that the alleged victim was consenting to the sexual activity which took place (See section 8 (1) (b)). Again, these presumptions are informed from common law decisions, specifically the rule which states that any consent obtained under fraud as to the nature and purpose of the sexual activity, or as to the identity of the accused, may be negated. In the last column, we examined a case in which a music teacher who told a pupil that he was conducting an exercise to allow her to sing better, but instead performed a sex act on her, was found guilty of a sexual offence because he had lied to her about the nature and purpose of what he was doing to her.

These provisions of the Sexual Offences Act are not often examined outside of courtrooms. As such, I am willing to wager that this is the first time many have seen these provisions, and this is the first time that many more have received an explanation of the origin, purpose, and nature of these provisions. It is my desire that this information will put alleged victims in possession of knowledge, either directly or indirectly, that will enable them to recognise past, present and future circumstances for what they are, and empower them to take action. I also hope that this information will allow would-be perpetrators to better recognise, understand, and avoid conduct which, previously, would not have been recognised as a sexual offence.