What’s Consent Got To Do With It?
As long ago as 2016 we were discussing what consent and reminding people that:
- No means no; and
- If someone is so intoxicated they can’t find their way home that they are probably not able to make an informed and considered decision about sex.
A viral blog post about consent compared sex to tea. It might seem silly but it sets out in easy terms what consent is. It was obviously so educational that social media shared the blogger’s thoughts until a consent hashtag ruled Twitter and Thames Valley Police picked up on the comparison and made a YouTube video:
Michaela Cole’s fantastic series ‘I May Destroy You’ examined consent again in a context that may be more understandable for most.
As a specialist solicitor dealing with clients who were sexually abused consent is a defence that is raised. And is becoming more prevalent.
However,I always feel somewhat gobsmacked when consent is raised as a defence to childhood abuse by defendants and the Criminal Injuries Compensation Authority alike.
An individual was 16 so they were able to consent to sex…
For the most part, there is always an element of grooming in the cases that we fight. Paedophiles do not only groom the children they wish to abuse but they groom their guardians, perhaps their work colleagues and generally those around them. If they did not then it is more likely that they would be caught out in their evil.
Instead, they take their time to ensure that the children and those around them think that they are ‘a good person’ or ‘a pillar of the community’ ensuring that any thoughts about improper behaviour are brushed to one side – “They can’t possibly be abusing children, they do so much for the community”. And with that cloak of respectability they abuse the children in their care.
The inherent nature of grooming is that those that are abused question whether they are actually being subjected to abuse. From time to time the abuse begins in childhood and continues until past the age of 16 and in to late teens, twenties or thirties.
Shockingly, some defendants seek to say that for any abuse that continues after an individual is over the age of consent the assaults cease being abuse and become consensual.
My response? Utter nonsense. Judges’ responses? Also, nonsense.
To run this argument is a scandal and Bolt Burdon Kemp has successfully argued that abuse post 16 can simply not be consensual due to the inherent nature of grooming. As one judge once remarked, with a raised eyebrow, “so it is abuse when she is 15 years 364 days old then she wakes up the next morning and it not abuse?” The judge then wished the defendant luck with the argument. To my mind, to run that argument is at best, ridiculous, at worst, offensive.
Criminal Injuries Compensation Authority
I have recently been successful in representing a client that was denied compensation from the Criminal Injuries Compensation Authority (“CICA”) as they argued she had consented to sex.
My client was in her very early teens. Her abuser gave her a significant amount of alcohol and raped her. In police interview my client stated that she could not remember the rape but as her rapist had been an ex boyfriend she presumed that she had consented to the intercourse. This was enough for the police and her attacker was not charged with the rape despite the fact that they knew;
- My client was so drunk she could not remember anything about the rape;
- That her level of intoxication and the amount of alcohol she had consumed must have left her totally unable to consent; and
- That the attacker had previously been known to them for sexually assaulting young girls
When my client attempted to claim compensation from the CICA her claim was rejected on the basis that she had consented to the intercourse.
Given that the CICA had access to my client’s police interview where it clearly set out how much she had had to drink and the fact she had no memory of the attack their decision seemed somewhat illogical. However, the CICA maintained this decision all the way to a hearing. Following a brief hearing whereby my client had to give evidence to a panel of individuals about her experience it took the panel a very short time indeed to decide that my client could not have possibly consented to sex given the amount of alcohol that she had been supplied with by her attacker. It is sad, however, that my client had to give evidence in order for the CICA to be forced to acknowledge that their decision was without merit or application of common sense and the law.
So what can we do going forward? Certainly the media portrayals of rape indicate that there is a still a lot of work to be done in respect of education people what consent actually means.
However, I think that the CICA need an education in consent when they have been given the ability to make life changing decisions about the award of compensation to survivors of sexual abuse.
And the defendants that submit that an individual who has been groomed for years suddenly has the capacity to consent on their 16th birthday and after? Really? That is really an argument that you feel comfortable submitting and that you genuinely believe has any merit? Shame on you.