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The Law On Sexual Offences

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The law on sexual offences stipulates that in order for criminal liability to exist, there needs to be a lack of consent, and also a lack of reasonable belief whether it be mistaken or not. Consent is defined in S.74 of the Sexual Offences Act 2003 as when “a person consents if he agrees by choice, and has the freedom and capacity to make that choice.” Before this act there was no statutory definition of consent. In the case of Olugboja , the residing lord Lord Dunn said “The jury should be directed that consent, or the absence of it, is to be given its ordinary meaning”2. Consent was not defined in previous legislations; this caused the Home Office in 1999 to set out a report called ‘Setting the Boundaries’ . In this report they lay out recommendations on how to deal with sexual offences going forward. One of the many suggestions they made were that consent should be defined as ‘free agreement’; and the law should set out a non-exhaustive list of examples of when consent/free agreement is not present.3 The issue of consent is pivotal in the offences of (1) rape; (2) assault by penetration; (3) sexual assault; and (4) Causing a person to engage in sexual activity without consent. The Sexual Offences Act 2003 introduced the latter three offences, statutory defined consent, new evidential presumptions were introduced such as the prosecution must disprove consent and not the defence needing to prove it, and it also changed the fault elements in the offence of rape. This act

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