A sleeping person is not capable of consenting to sex, appeal court rules in rape case

The High Court of Justiciary Appeal Court ruled that the terms of the legislation were “clear” that a person cannot consent to conduct while she is asleep or unconscious, nor can she consent in advance.

‘Reasonable belief’

The Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Turnbull, heard that the appellant “GW” was charged with the rape of his partner while she was “asleep and incapable of giving or withholding consent.

He lodged a special defence which stated that he engaged in sexual intercourse “with the consent of” the complainer and that in any event when he “reasonably believed her to be consenting”.

The court was told that it was “the practice of the parties… that on occasion the appellant would waken the complainer… by penetrating, or attempting to penetrate her vagina with his penis” and that the complainer “consented to being awoken in this way”.

It was explained before a preliminary hearing judge that what this meant was that consent had been given at the start of the relationship and had never been withdrawn.

Such sexual activity - the penetration whilst the complainer was asleep - was “a continuing feature throughout the relationship”.

However, the PH judge held that the use, in section 1 of the Sexual Offences (Scotland) Act 2009, of the present participle “consenting” meant that the consent had to be continuing for the conduct not to constitute rape.

In terms of section 14, consent could not be continuing when a complainer was asleep or unconscious - there could be no defence of “prior consent”, where the conduct arose when a complainer was asleep or unconscious.

The judge refused an application under section 275 of the Criminal Procedure (Scotland) Act 1995 to permit evidence to the effect that the complainer had consented to being woken by vaginal penetration as a facet of the relationship.

‘Prior consent’

Appealing against the judge’s decision, the appellant argued that there was a “distinction” between the protection which the law afforded to an accused who was in a continuing relationship and one who had been a party to a chance encounter.

Where the persons were partners, the nature of the relationship, and the patterns, accommodations and negotiations in the relationship, formed sources of evidence from which a reasonable belief in consent could be “inferred” in circumstances where the conduct said to constitute rape had occurred when the complainer was asleep.

In explaining the meaning of consent, section 12 of the 2009 Act was silent both on how free agreement was to be expressed and when it was to be expressed.

Intercourse while the complainer was asleep had been “a facet of the relationship” and one to which the complainer had “consented in advance”.

It was also submitted that the terms of the Act should not be construed as a bar to the operation of antecedent or prior consent in such circumstances - the legislation did not stipulate that consent could not be granted prior to a complainer falling asleep.

The purpose of section 14(2), in its exclusion of consent whilst asleep, was to prevent inarticulate noises, words spoken in an unconscious state, or acquiescence being regarded as indicative of consent - it was not intended to prevent a party from experiencing pleasure in waking in the midst of ongoing intercourse.

At the stage 2 passage of the bill in the Scottish Parliament, the Cabinet Secretary for Justice had said that section 14(2) “replicates our understanding of the current law by providing that someone who is asleep or unconscious cannot give consent while in that state. The new section … does not, in terms, exclude the possibility of reasonable belief in consent, nor does it place any specific restrictions on how such a reasonable belief may arise.”

He added that it “would be for the court to decide whether any claim of reasonable belief … would be credible in a case in which such circumstances had arisen. It is highly unlikely that a court would regard a belief that the victim gave consent while he or she was incapable of giving such consent to be a reasonable belief”.

It was argued that these comments made it clear that, whereas section 14 restated that a person who was asleep could not give consent whilst “in that state”, it did not exclude prior consent or a defence of reasonable belief when the complainer was asleep.

The Crown’s position, which was to the effect that the provisions of the legislation “did not permit free agreement in advance”, was a “totalitarian one” as it was interference with a person’s private and family life - although no argument was raised about the compatibility of the 2009 Act with Article 8 of the European Convention on Human Rights.

Legislation is ‘unambiguous’

However, the appeal judges ruled that “a sleeping person is not capable of consenting”.

Delivering the opinion of the court, the Lord Justice General said: “The terms of the Act are, as the PH judge determined, clear. What is required by section 1(1)(b) is that the act is committed without the other person ‘consenting’ and without a reasonable belief that she ‘consents’.

“The former is a present participle and the latter use of the verb is in the present tense. This is indicative of a need for the consent to be given, in whatever form, at the time of the sexual act and not at a point remote from it.

“Such an interpretation is consistent with the general notion of the need, expressed in the Act, for there to be continuing consent throughout the conduct. It is consistent also with the terms of section 274(1)(c) of the 1995 Act the relevant time of consent. Section 15 is clear that consent to conduct does not of itself imply consent to any other conduct.

“Thus, the fact that consensual conduct of the same type has happened before will not, at least on its own, constitute consent to the same conduct occurring at a different time. The contrary was, in large measure, what the appellant’s argument was.

“Section 14 is equally clear in its statement that a person cannot consent to conduct whilst she is asleep or unconscious. This too is unambiguous. It means what it says. A sleeping person is not capable of consenting.

“Therefore, given that the consent must be given at the time, sexual conduct which occurs when the person is in that state is criminal. It cannot be consented to at a remote point in advance.”

Any suggestion that the terms of the legislation were ambiguous were resolved by the fact that parliament did not accept a recommendation proposed by the Scottish Law Commission, which would have expressly permitted advance consent.

Lord Carloway continued: “Nothing which the Cabinet Secretary said suggested that such consent, as a defence, was to remain a possibility, even if his phraseology was cautious.”

He added: “As matters stand, there is no challenge that the provisions of the 2009 Act breach the right to respect for a private or family life under Article 8 of the European Convention of the type envisaged by some of those who responded to the SLC’s consultation (supra). Any such challenge, if made, would require to be analysed on it merits…”