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If you or someone you know has been accused of rape, seek immediate legal advice. Sutton Defence Lawyers are ready to act on your behalf. Our close attention to our clients’ needs, meticulous defence preparation and powerful representation make us the premier choice for criminal defence.

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What is rape?

Sexual Offences Act 2003

Section 1 of the Sexual Offences Act 2003 makes rape a criminal offence, punishable by a sentence of up to life imprisonment. The central issue of consent is addressed in detail in sections 74-76 of the Act.

What is consent?

Section 74 of the Act states that ‘a person consents if he agrees by choice, and has the freedom and capacity to make that choice’. Section 75 and 76 go on to outline circumstances where it can be presumed that the person did not have the freedom or capacity to consent, and so neither consent nor a reasonable belief in consent could have existed.

Evidential presumptions about consent

The circumstances listed in section 75 are rebuttable evidential presumptions. If the prosecution proves that one of these circumstances was present, the defendant can provide counter-evidence to show that the complainant did in fact consent. Situations where consent is presumed not to have been present include where:

  • Violence or the threat of violence was used during or immediately prior to the act
  • The complainant was unlawfully detained
  • The complainant was asleep or unconscious
  • Due to a physical disability, the complainant would have been unable to communicate their consent to the defendant
  • The complainant was, without their consent, administered with a substance capable of causing them to be ‘stupefied or overpowered’

Conclusive presumptions about consent

Section 76 sets out conclusive presumptions. If the prosecution shows that one of these circumstances was present, it has proven that consent and a reasonable belief in consent cannot have existed. The defendant cannot rebut the presumption. The circumstances listed in section 76 are where the defendant has intentionally:

  • Deceived the complainant as to the nature or purpose of the act
  • Induced the complainant to consent by impersonating someone the complainant knew personally

Intoxication and consent

When a complainant has consumed alcohol or drugs voluntarily, the law is less clear. Whilst it has been established that drunken consent is still consent (R v Bree [2007]), the judgment in Bree acknowledges that intoxication can lead to the loss of capacity and freedom to consent ‘well before a complainant becomes unconscious’. Nevertheless, it is unclear at what point a voluntarily intoxicated person can be considered unable to consent, and the question is addressed on a case-by-case basis.

Contact our Rape Defence Lawyers (Yorkshire, London, Birmingham, Manchester)

A rape allegation threatens your career, reputation and personal relationships. You can rely on our sexual offences solicitors to provide the protection you need. Our exceptional defence preparation, dedication to our clients and extensive experience make us the foremost choice to represent your rights. To get the help you need today, contact Stuart Sutton on 07798753720, or via email at This email address is being protected from spambots. You need JavaScript enabled to view it..

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