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Has Parliament crossed the Rubicon with s 75A of the Serious Crime Act 2015? HHJ Emma Nott and John Simmons examine this statutory precedent that has largely gone unremarked and its wider implications
Since s 75A of the Serious Crime Act 2015 (SCA 2015) came into force last year, we have quickly absorbed the prevalence, unique harms and high-risk factors associated with non-fatal strangulation and suffocation (see Joanna Evans’ and Nogah Ofer’s excellent analysis in the June 2023 issue of Counsel). The Court of Appeal Criminal Division (CACD) in Cook [2023] EWCA Crim 452 established that strangulation offences are for the Crown Court, and that due to the inherent harm ‘which inevitably creates real and justified fear of death’, custody is inevitable save in exceptional circumstances. The starting point after trial is 18 months’ imprisonment, ‘ordinarily’ immediate, although the court clarified in Borsodi [2023] EWCA Crim 899 that this does not mean that suspension will be appropriate only in exceptional circumstances (although presumably suspension will only be apt ‘extraordinarily’).
However, there are wider implications – currently unacknowledged, likely unintended and arguably revolutionary: s 75A SCA 2015 both places an evidential burden on a defendant running consent to a charge of intentional strangulation, and prima facie excludes any belief in consent defence unless that belief is firmly allied to evidence of actual consent. The drafting may provide a blueprint for victims’ and women’s groups calling for Parliament to adopt the principle of ‘affirmative consent’ through the Victims and Prisoners Bill.
Parliament has determined that if a defendant asserts that strangulation was consensual, then it is for him to ‘show’ that consent. This sets statutory precedent that has largely gone unremarked.
Here the Act brings equally profound change – it defines a reckless mens rea attaching to the offence, but ascribes no mens rea to the consent defence. Other commentators argue that a common law mens rea must apply to the consent defence in s 75A(2), consistent with the basic common law position per Beckford [1988] AC 130 (see Kelly and Ormerod, ‘Non-fatal Strangulation and Suffocation’, [2021] Crim LR 536). Yet the drafting of s 75A does not support a belief in consent defence: if it is enough for A to show that he genuinely believed B consented, even though she did not, then how can A ‘show that B consented’ as required by s (2)? There would have to be implied into s 75A(2) after ‘It is a defence to an offence under this section for A to show that B consented to the strangulation or other act’ the words ‘or for A to show that A genuinely believed that B consented to the strangulation or other act’. Once raised and evidenced, consent brings into play a new element of the offence that the Crown must prove: serious harm (s (3)(a)), with a reckless mens rea explicitly described at s (3)(b) – in stark contrast to the statutory silence on mens rea in consent.
Strangulation is regularly indicted as part of wider allegations of sexual abuse. Yet the common law approach to a defendant’s belief in consent is that it must be genuine; under the Sexual Offences Acts it must also be reasonable. The Privy Council in Beckford suggested that the difference between an objective and a subjective belief is narrow:
‘Whether or not the accused had a genuine belief the judge will of course direct their attention to those features of the evidence that make such a belief more or less probable. Where there are no reasonable grounds to hold a belief it will surely only be in exceptional circumstances that a jury will conclude that such a belief was or might have been held.’
Nonetheless, if a common law mens rea attaches to the consent defence in s 75A(2), the difference in the quality of the belief – reasonable for rape, genuine for strangulation – is problematic for two reasons.
First, the necessarily different directions for each offence may confuse the jury and are certainly unhelpful. For example, a complainant may assert a pattern of coercive control throughout a relationship including specific allegations of rape and of strangulation. The indictment may allege an over-arching count of controlling or coercive behaviour with substantive rape and strangulation counts. The defendant may deny the rape allegations on the basis of consent, or at least his reasonable belief in consent and assert that strangulation was always part of consensual sexual activity, not of coercive control. If a common law mens rea applies to s 75A, the jury receives different directions on the rape and strangulation counts both in respect of consent (‘free’ for rape, ‘free and informed’ for strangulation) and belief in consent (‘reasonable’ for rape, ‘genuine’ for strangulation). There is the potential for verdicts on rape and strangulation that differ solely due to a jury’s determination that the defendant held an unreasonable but genuine belief in consent.
Second, the behaviour with objectively the highest risk of fatality requires the disproof of a subjective, therefore possibly unreasonable, mens rea rather than an objective one. Given the unique harms and high-risk factors* that concerned Parliament sufficiently to make strangulation a standalone offence, it is unlikely to have intended a lesser mens rea than for rape or other sexual offences.
Lack of consent and lack of belief in consent became part of the statutory definition of rape when s 1 of the Sexual Offences Act 1956 was amended by the Sexual Offences (Amendment) Act 1976. The amendments required a jury considering belief in consent to have regard to ‘the presence or absence of reasonable grounds for such a belief’ – providing statutory precedent for the Privy Council’s later observations in Beckford. Section 74 of the Sexual Offences Act 2003 gave the first statutory definition of consent, and Parliament replaced the subjective mens rea with the objective. Mens rea in consent has evolved then from the common law subjective (1956), through the statutory subjective with objective elements (1976), to the statutory objective (2003). Had Parliament in 2021 intended belief in consent to be a defence to strangulation, then surely it would have been an objective belief, consistent with 21st-century statute, and explicitly set out within s 75A(2) SCA 2015. Its absence is more likely to represent the height of its evolution from subjective, through subjective with objective elements, to objective, and now finally to a belief in consent that is indivisible from the fact of consent.
There is common law precedent: in Konzani [2005] EWCA 706 A appealed his convictions for inflicting GBH contrary to s 20 of the Offences Against the Person Act 1861. He had had unprotected consensual sex with three women without disclosing that he was HIV+. Each contracted HIV. The jury was directed that if the consent of the women were to provide A with a defence, it had to be an informed and willing consent to the risk of contracting HIV. A submitted that the judge had wrongly declined to leave to the jury the issue whether he may have had an honest, even if unreasonable, belief that because each of the complainants had consented to unprotected sex, it might be inferred that they had also consented to all possible consequent risks, including the risk of contracting HIV. He argued that the judge had deprived him of the jury’s consideration of whether he had a guilty mind. The Court of Appeal dismissed the appeal, emphasising a critical distinction between risking the consequences of unprotected consensual sexual intercourse, and the giving of informed consent to the risk of infection with a fatal disease. Where consent provided a defence to an offence against the person, an honest belief in consent would generally also provide a defence. However, in the circumstances, A’s honest belief had to be concomitant with the consent that provided a defence. Unless consent provided a defence, an honest belief in it would not assist a defendant.
Arguably, the risk of serious – possibly fatal – harm through strangulation similarly justifies the refusal to leave to a jury consideration of whether a defendant has a ‘guilty mind’. This approach is consistent with the evidential burden placed on the defendant by s (2) ‘to show that B consented’. It is also consistent with Parliament’s stated intention to protect the public – young women and girls in particular – from coercion into risk-laden sexual activity. Once the act of oxygen-deprivation begins, the window for the subject maintaining capacity to withdraw consent may be as little as four seconds. As a matter of public protection, the importance of obtaining informed, unambiguous and freely given consent prior to the act of strangulation should override the protection traditionally afforded to a defendant who wrongly believes his partner has consented.
If our interpretation of s 75A is correct – that belief in consent to strangulation is indivisible from actual consent – then the Rubicon has been crossed: the burden of evidencing consent in sexual strangulation falls on the defendant, who must ensure that consent is clear and unambiguous since mistaken belief in consent won’t help him. Putting the onus on the strangler to obtain consent and to take care that no serious harm occurs reflects fundamental change in the application of criminal law principles. However, this seems timely rather than unreasonable given the unique harms and high risk of instant or future fatality or morbidity associated with non-fatal strangulation offences, and the general disparity in physical strength between the sexes. Like rape, strangulation is a gendered crime: current research indicates that around 96% of victims are female, and 98% of perpetrators are male (White et al, ‘“I thought he was going to kill me’: Analysis of 204 case files of adults reporting non-fatal strangulation as part of a sexual assault over a 3 year period’ (2021) 79 J. Forensic Leg. Med. 102).
When Parliament debated consent in sexual strangulation it was concerned with the modern pressures that today’s children and teenagers must navigate to reach adulthood, including the ‘widespread availability and use of extreme pornography’ (Laura Farris MP, Hansard Commons Consideration of Lords Amendments to Domestic Abuse Bill, col 548 (15 April 2021)). However, anti-Violence Against Women and Girls associations and victims’ rights groups point to the implications of those same pressures surrounding sexual activity generally as well as the serious trauma-based harm caused to victims of rape. If s 75A recognises that the potential serious consequences of strangulation for sexual gratification require a high level of care to be taken by the perpetrator such that the onus is on him to obtain and ensure consent, then why in principle can that recognition not be extended to rape and assault by penetration cases?
With the government consulting on the Victims and Prisoners Bill, public concern at how rape allegations are investigated, and misgivings surrounding the balance between fairness to a defendant and fairness to a complainant at trial have a higher profile than ever. The Editorial in this February’s Criminal Law Review referred to ‘the repeated claim that rape has effectively been decriminalised as conviction rates are so low’ (H Quirk, ‘(Perceptions of) fairness’ [2023] Crim LR 101). In May the Law Commission launched its consultation paper on Evidence in Sexual Offences Prosecutions, discussing various reforms including limitations on disclosure of complainants’ personal records, stricter controls on their cross-examination and offering them independent legal representation. Trial by judge rather than jury is proposed in Scotland. It is our experience that in England and Wales, with our binary verdicts, jurors are well able to discuss and dissect the issues; they are generally assiduous in following directions and in the application of the burden and standard of proof. They remain the barometer and the guarantor of democracy. Our anecdotal observations are supported by recent research published by Professor Cheryl Thomas KC. Her empirical analysis of rape trials from 2007-2022 indicates that in the last five years – during which period written directions including on rape myths and stereotypes have routinely been given to juries – the conviction rates after trial by jury for rape have increased from between 50-55% in 2007-17 to between 65 and 78% in 2018-21 (C Thomas, ‘Juries, Rape and Sexual offences in the Crown Court 2007/21’ [2023] Crim LR 200). It may be that the lack of justice afforded to victims of sexual crime complained of by victims’ rights’ groups is rooted in the way the jury has historically been directed to perform its task rather than in want of juror diligence or fairness. Nonetheless, currently a jury must be directed that they must acquit a defendant of rape if they are sure that the complainant did not consent but think that the defendant may not have realised that.
Section 75A places an evidential burden on a defendant asserting consent and, we suggest, denies him the separate defence of mistaken but honest belief in consent. It is groundbreaking. A possibly unintended consequence is to create statutory precedent for those advocating for like amendment of SOA 2003 to conform to the principle of ‘affirmative consent’. If the defendant says that the complainant consented, then why should he not have to demonstrate the fact of that consent when tried for rape, as he does when tried for strangulation for sexual gratification? If he accepts with hindsight that the complainant was not in fact consenting, then why should his possible contemporaneous belief that she was entitle him to be acquitted of rape but not of sexual strangulation?
The Court of Appeal will likely soon be called upon to determine whether and to what extent belief in consent is relevant in strangulation; it is for Parliament to determine whether and to what extent the evidential burden in establishing consent in rape should shift, and whether there is in the modern age any longer any justification for a standalone reasonable belief in consent defence at all.
* For detailed descriptions of these harms and risk factors see: Kelly and Ormerod, ‘Non-fatal Strangulation and Suffocation’ [2021] Crim LR 532; White et al, ‘“I thought he was going to kill me”: Analysis of 204 case files of adults reporting non-fatal strangulation as part of a sexual assault over a 3 year period’ (2021) 79 J. Forensic Leg. Med. 102; S. Edwards, ‘The strangulation of female partners’ [2015] Crim. L.R. 949; Bichard et al, ‘The neuropsychological outcomes of non-fatal strangulation in domestic and sexual violence: A systematic review’ [2021] Neuropsychological Rehabilitation 4, 18-20. See also Joanna Evans and Nogah Ofer, ‘Non-fatal strangulation one year on: why it matters’, Counsel June 2023
This is an abridged version of a longer article published in the Criminal Law Review at 2023 Crim LR 512.
HHJ Emma Nott is a Circuit judge at Reading Crown and Family Courts. She is a Criminal Law Tutor for the Judicial College and trains Gray’s Inn students and pupils.
John Simmons is a barrister at The 36 Group practising serious crime for over 20 years.
Since s 75A of the Serious Crime Act 2015 (SCA 2015) came into force last year, we have quickly absorbed the prevalence, unique harms and high-risk factors associated with non-fatal strangulation and suffocation (see Joanna Evans’ and Nogah Ofer’s excellent analysis in the June 2023 issue of Counsel). The Court of Appeal Criminal Division (CACD) in Cook [2023] EWCA Crim 452 established that strangulation offences are for the Crown Court, and that due to the inherent harm ‘which inevitably creates real and justified fear of death’, custody is inevitable save in exceptional circumstances. The starting point after trial is 18 months’ imprisonment, ‘ordinarily’ immediate, although the court clarified in Borsodi [2023] EWCA Crim 899 that this does not mean that suspension will be appropriate only in exceptional circumstances (although presumably suspension will only be apt ‘extraordinarily’).
However, there are wider implications – currently unacknowledged, likely unintended and arguably revolutionary: s 75A SCA 2015 both places an evidential burden on a defendant running consent to a charge of intentional strangulation, and prima facie excludes any belief in consent defence unless that belief is firmly allied to evidence of actual consent. The drafting may provide a blueprint for victims’ and women’s groups calling for Parliament to adopt the principle of ‘affirmative consent’ through the Victims and Prisoners Bill.
Parliament has determined that if a defendant asserts that strangulation was consensual, then it is for him to ‘show’ that consent. This sets statutory precedent that has largely gone unremarked.
Here the Act brings equally profound change – it defines a reckless mens rea attaching to the offence, but ascribes no mens rea to the consent defence. Other commentators argue that a common law mens rea must apply to the consent defence in s 75A(2), consistent with the basic common law position per Beckford [1988] AC 130 (see Kelly and Ormerod, ‘Non-fatal Strangulation and Suffocation’, [2021] Crim LR 536). Yet the drafting of s 75A does not support a belief in consent defence: if it is enough for A to show that he genuinely believed B consented, even though she did not, then how can A ‘show that B consented’ as required by s (2)? There would have to be implied into s 75A(2) after ‘It is a defence to an offence under this section for A to show that B consented to the strangulation or other act’ the words ‘or for A to show that A genuinely believed that B consented to the strangulation or other act’. Once raised and evidenced, consent brings into play a new element of the offence that the Crown must prove: serious harm (s (3)(a)), with a reckless mens rea explicitly described at s (3)(b) – in stark contrast to the statutory silence on mens rea in consent.
Strangulation is regularly indicted as part of wider allegations of sexual abuse. Yet the common law approach to a defendant’s belief in consent is that it must be genuine; under the Sexual Offences Acts it must also be reasonable. The Privy Council in Beckford suggested that the difference between an objective and a subjective belief is narrow:
‘Whether or not the accused had a genuine belief the judge will of course direct their attention to those features of the evidence that make such a belief more or less probable. Where there are no reasonable grounds to hold a belief it will surely only be in exceptional circumstances that a jury will conclude that such a belief was or might have been held.’
Nonetheless, if a common law mens rea attaches to the consent defence in s 75A(2), the difference in the quality of the belief – reasonable for rape, genuine for strangulation – is problematic for two reasons.
First, the necessarily different directions for each offence may confuse the jury and are certainly unhelpful. For example, a complainant may assert a pattern of coercive control throughout a relationship including specific allegations of rape and of strangulation. The indictment may allege an over-arching count of controlling or coercive behaviour with substantive rape and strangulation counts. The defendant may deny the rape allegations on the basis of consent, or at least his reasonable belief in consent and assert that strangulation was always part of consensual sexual activity, not of coercive control. If a common law mens rea applies to s 75A, the jury receives different directions on the rape and strangulation counts both in respect of consent (‘free’ for rape, ‘free and informed’ for strangulation) and belief in consent (‘reasonable’ for rape, ‘genuine’ for strangulation). There is the potential for verdicts on rape and strangulation that differ solely due to a jury’s determination that the defendant held an unreasonable but genuine belief in consent.
Second, the behaviour with objectively the highest risk of fatality requires the disproof of a subjective, therefore possibly unreasonable, mens rea rather than an objective one. Given the unique harms and high-risk factors* that concerned Parliament sufficiently to make strangulation a standalone offence, it is unlikely to have intended a lesser mens rea than for rape or other sexual offences.
Lack of consent and lack of belief in consent became part of the statutory definition of rape when s 1 of the Sexual Offences Act 1956 was amended by the Sexual Offences (Amendment) Act 1976. The amendments required a jury considering belief in consent to have regard to ‘the presence or absence of reasonable grounds for such a belief’ – providing statutory precedent for the Privy Council’s later observations in Beckford. Section 74 of the Sexual Offences Act 2003 gave the first statutory definition of consent, and Parliament replaced the subjective mens rea with the objective. Mens rea in consent has evolved then from the common law subjective (1956), through the statutory subjective with objective elements (1976), to the statutory objective (2003). Had Parliament in 2021 intended belief in consent to be a defence to strangulation, then surely it would have been an objective belief, consistent with 21st-century statute, and explicitly set out within s 75A(2) SCA 2015. Its absence is more likely to represent the height of its evolution from subjective, through subjective with objective elements, to objective, and now finally to a belief in consent that is indivisible from the fact of consent.
There is common law precedent: in Konzani [2005] EWCA 706 A appealed his convictions for inflicting GBH contrary to s 20 of the Offences Against the Person Act 1861. He had had unprotected consensual sex with three women without disclosing that he was HIV+. Each contracted HIV. The jury was directed that if the consent of the women were to provide A with a defence, it had to be an informed and willing consent to the risk of contracting HIV. A submitted that the judge had wrongly declined to leave to the jury the issue whether he may have had an honest, even if unreasonable, belief that because each of the complainants had consented to unprotected sex, it might be inferred that they had also consented to all possible consequent risks, including the risk of contracting HIV. He argued that the judge had deprived him of the jury’s consideration of whether he had a guilty mind. The Court of Appeal dismissed the appeal, emphasising a critical distinction between risking the consequences of unprotected consensual sexual intercourse, and the giving of informed consent to the risk of infection with a fatal disease. Where consent provided a defence to an offence against the person, an honest belief in consent would generally also provide a defence. However, in the circumstances, A’s honest belief had to be concomitant with the consent that provided a defence. Unless consent provided a defence, an honest belief in it would not assist a defendant.
Arguably, the risk of serious – possibly fatal – harm through strangulation similarly justifies the refusal to leave to a jury consideration of whether a defendant has a ‘guilty mind’. This approach is consistent with the evidential burden placed on the defendant by s (2) ‘to show that B consented’. It is also consistent with Parliament’s stated intention to protect the public – young women and girls in particular – from coercion into risk-laden sexual activity. Once the act of oxygen-deprivation begins, the window for the subject maintaining capacity to withdraw consent may be as little as four seconds. As a matter of public protection, the importance of obtaining informed, unambiguous and freely given consent prior to the act of strangulation should override the protection traditionally afforded to a defendant who wrongly believes his partner has consented.
If our interpretation of s 75A is correct – that belief in consent to strangulation is indivisible from actual consent – then the Rubicon has been crossed: the burden of evidencing consent in sexual strangulation falls on the defendant, who must ensure that consent is clear and unambiguous since mistaken belief in consent won’t help him. Putting the onus on the strangler to obtain consent and to take care that no serious harm occurs reflects fundamental change in the application of criminal law principles. However, this seems timely rather than unreasonable given the unique harms and high risk of instant or future fatality or morbidity associated with non-fatal strangulation offences, and the general disparity in physical strength between the sexes. Like rape, strangulation is a gendered crime: current research indicates that around 96% of victims are female, and 98% of perpetrators are male (White et al, ‘“I thought he was going to kill me’: Analysis of 204 case files of adults reporting non-fatal strangulation as part of a sexual assault over a 3 year period’ (2021) 79 J. Forensic Leg. Med. 102).
When Parliament debated consent in sexual strangulation it was concerned with the modern pressures that today’s children and teenagers must navigate to reach adulthood, including the ‘widespread availability and use of extreme pornography’ (Laura Farris MP, Hansard Commons Consideration of Lords Amendments to Domestic Abuse Bill, col 548 (15 April 2021)). However, anti-Violence Against Women and Girls associations and victims’ rights groups point to the implications of those same pressures surrounding sexual activity generally as well as the serious trauma-based harm caused to victims of rape. If s 75A recognises that the potential serious consequences of strangulation for sexual gratification require a high level of care to be taken by the perpetrator such that the onus is on him to obtain and ensure consent, then why in principle can that recognition not be extended to rape and assault by penetration cases?
With the government consulting on the Victims and Prisoners Bill, public concern at how rape allegations are investigated, and misgivings surrounding the balance between fairness to a defendant and fairness to a complainant at trial have a higher profile than ever. The Editorial in this February’s Criminal Law Review referred to ‘the repeated claim that rape has effectively been decriminalised as conviction rates are so low’ (H Quirk, ‘(Perceptions of) fairness’ [2023] Crim LR 101). In May the Law Commission launched its consultation paper on Evidence in Sexual Offences Prosecutions, discussing various reforms including limitations on disclosure of complainants’ personal records, stricter controls on their cross-examination and offering them independent legal representation. Trial by judge rather than jury is proposed in Scotland. It is our experience that in England and Wales, with our binary verdicts, jurors are well able to discuss and dissect the issues; they are generally assiduous in following directions and in the application of the burden and standard of proof. They remain the barometer and the guarantor of democracy. Our anecdotal observations are supported by recent research published by Professor Cheryl Thomas KC. Her empirical analysis of rape trials from 2007-2022 indicates that in the last five years – during which period written directions including on rape myths and stereotypes have routinely been given to juries – the conviction rates after trial by jury for rape have increased from between 50-55% in 2007-17 to between 65 and 78% in 2018-21 (C Thomas, ‘Juries, Rape and Sexual offences in the Crown Court 2007/21’ [2023] Crim LR 200). It may be that the lack of justice afforded to victims of sexual crime complained of by victims’ rights’ groups is rooted in the way the jury has historically been directed to perform its task rather than in want of juror diligence or fairness. Nonetheless, currently a jury must be directed that they must acquit a defendant of rape if they are sure that the complainant did not consent but think that the defendant may not have realised that.
Section 75A places an evidential burden on a defendant asserting consent and, we suggest, denies him the separate defence of mistaken but honest belief in consent. It is groundbreaking. A possibly unintended consequence is to create statutory precedent for those advocating for like amendment of SOA 2003 to conform to the principle of ‘affirmative consent’. If the defendant says that the complainant consented, then why should he not have to demonstrate the fact of that consent when tried for rape, as he does when tried for strangulation for sexual gratification? If he accepts with hindsight that the complainant was not in fact consenting, then why should his possible contemporaneous belief that she was entitle him to be acquitted of rape but not of sexual strangulation?
The Court of Appeal will likely soon be called upon to determine whether and to what extent belief in consent is relevant in strangulation; it is for Parliament to determine whether and to what extent the evidential burden in establishing consent in rape should shift, and whether there is in the modern age any longer any justification for a standalone reasonable belief in consent defence at all.
* For detailed descriptions of these harms and risk factors see: Kelly and Ormerod, ‘Non-fatal Strangulation and Suffocation’ [2021] Crim LR 532; White et al, ‘“I thought he was going to kill me”: Analysis of 204 case files of adults reporting non-fatal strangulation as part of a sexual assault over a 3 year period’ (2021) 79 J. Forensic Leg. Med. 102; S. Edwards, ‘The strangulation of female partners’ [2015] Crim. L.R. 949; Bichard et al, ‘The neuropsychological outcomes of non-fatal strangulation in domestic and sexual violence: A systematic review’ [2021] Neuropsychological Rehabilitation 4, 18-20. See also Joanna Evans and Nogah Ofer, ‘Non-fatal strangulation one year on: why it matters’, Counsel June 2023
This is an abridged version of a longer article published in the Criminal Law Review at 2023 Crim LR 512.
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