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Application of Law of Consent in Rape

Consent refers to the voluntary agreement to engage in sexual activity, and therefore a person should have the capacity and the freedom to make a choice when engaging in sexual activity. On the other hand, rape refers to sexual assault that involves sexual penetration by use of physical force, coercion, or abuse of authority. The prosecutors in a rape case should consider whether the complainant can consent to involve in sexual activity and whether the complainant was in a position to choose freely. Some of the instances of invalid consent are incapacitation, unconsciousness, intellectual disabilities or the complainant is below the legal age of consenting. My assignment will focus on establishing the application of the law of consent in Rape cases.

Rape involves sexual penetration against the will of the other party, and therefore the consent to prior sexual acts cannot be used as a defense in the case of future sexual occasions. Two people involving in sex must be willing participants without any form of coercion, physical force, or intimidation. Having sexual acts against women who have passed out due to intoxication or mental dysfunction constitutes rape since they are not in the capacity to consent to sex willingly. Children below the legal age cannot also make deliberate choices to involve in sex. Therefore, any adult who involves in such actions can be charged with rape. The sexual offense Act of 2003 asserts that there must be reasonable consent to sexual activity by both parties to rule the possibility of rape (Guereca-Adair,2020). Children below the age of 13 years lack the capacity to make informed choices and therefore are protected. Any sexual contact is illegal regardless of the circumstances that led to the sexual act. Therefore, investigators must ask the suspect questions to ascertain that the complainant was in the right state of mind and could make an informed consent at the time of the sexual act.

Section 75 of the 2003 Sexual Offenses Act asserts that a complaint is incapable of making consent when he/she is unconscious or asleep. Therefore the belief of consenting cannot be admissible as a defense for such individuals. The case of R v Bree is an example of a case where the leading Judge ruled out that the complaint could not consent though there was voluntary consumption of alcohol (Ali Alhamed, 2018). The main issue was not the voluntary intoxication but whether the complainant willfully consented to sexual activity. A high level of intoxication impairs the normal functioning of the mind of the complainant. Therefore a person should not take advantage of a person and have sex since different people have a lesser capacity to cope with varying alcohol levels in the blood system. Drunk consent may be acceptable where the complainant was not intoxicated to the point of losing consciousness. Still, the consent is invalid if the victim was drugged in any way since the intoxication in such a case is involuntary. There rise complications in establishing whether a drunk victim truly consented to involve in sexual acts, affecting the validity of drunken consent.

Grooming of vulnerable complainants such as children to involve in sexual activity may not amount to free consent, and therefore the accused person is liable to rape charges. In the case of R v Malone, the complainant who does not consent to the sexual acts need not communicate their non-consent (Guereca-Adair,2020). It was also established that marriage is not an explicit consent to sexual acts. An immature person lacks the legal capacity to consent to sexual acts truly. Therefore, when such people are groomed for sexual exploitation, the defendants’ actions amount to rape. An immature person may not give true consent to sexual acts but may be lured to the actions due to acquiesce without clearly understanding the significance of the actions. An accused person may use gifts, insincere compliments, and promises as well as intimidations to lure children into giving in to sexual acts, and this does not constitute free will to consent, and therefore such actions result in sexual exploitation of children.

The 2003 Act abolished the reasonable belief in consent, and therefore, the defendant has the responsibility to ensure that the complainant consent to the sexual activity at the particular time of the action. Therefore, the ruling of the DPP v Morgan was abolished since it was a mistaken belief of consent. Investigating officers and prosecutors must rely on the evidence that the complainant truly consented to sexual activities and not a mere belief of consent (Guereca-Adair, 2020). The circumstances of the case must also be examined to ascertain whether the complainant can consent and is of the legally acceptable age. The intention of the accused must also be examined to ensure that the sexual act was voluntary between the two parties. The jury should determine the issue of consent and capacity to consent to ensure that they gather sufficient evidence to support the claims of involuntary consent by the complainant. The jury also cross-examines the defendant’s evidence provided to argue on the possibility of the consent that might have existed at the time of sexual activity.

In conclusion, mentally incapacitated persons and intoxication affect the extent of acceptable consent. A defendant is also liable to prosecution if he secures consent from a victim through the infliction of physical harm or intimidation. Children below the legal age of consent are a protected category, and therefore, under no circumstances can their consent be used as a defense by the defendants. Grooming of vulnerable victims to participate in sexual activities can not amount to consent in law since there is no true consent in such cases due to the basic fact that such people lack the capacity to consent.


Ali Alhamed, F. (2018). Drunken Consent in Rape cases: Why the law leaves a lot to be desired. Retrieved 30 May 2021, from

Guereca-Adair, V. (2020). The Sexual Offences Act 2003: the issue of ‘consent’. Retrieved 30 May 2021, from


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