R v Watson  EWCA Crim 559
The nature of the direction to be given on consent for the purposes of rape under Sexual Offences Act 2003, s 1
The defendant was convicted of two counts of rape and two counts of assault by penetration. The defendant fathered a child, who was immediately given up for adoption at the age of 17. The complainant in the case was this child. The complainant first made contact with the defendant when the defendant was aged 52 and immediately began an enthusiastic consensual sexual relationship with the defendant including bondage. Despite the sexual relationship being mostly consensual, the complainant stated that on three dates, five offences were committed because the sex on these occasions was not consensual.
There were four grounds of appeal, but the relevant ground and the one not entirely based on the facts of the judgment relates to how a jury should be directed regarding the definition of consent.
In this judgment, the trial judge had stated that consent would only be present if a complainant had the freedom and capacity to make a choice and exercised that choice to have sexual intercourse. The trial judge also stated that consent could range from willing enthusiasm to reluctant acquiescence. No fault was found with this part of the judgment. However, the judge also asked the jury to consider whether the complainant was freely consenting or submitting to a demand she felt unable to resist. It was held that a person may feel unable to resist but not lack the freedom to make the choice; they reluctantly consent. The judge’s direction did not accurately reflect the law.