“Although s.74 of the Sexual Offences Act 2003 provides a meaning of consent, the factual circumstances as to when someone is consenting or not can range from a truly passionate encounter to outright physical objection. (Forster, Criminal Law and Practice, 1ST Edition 2008, Sweet & Maxwell) Critically consider how the Courts have sought to clarify the statutory meaning of consent in the context of rape and related offences in light of recent case law, including the Court of Appeal decision in R. v Mc Nally [2013] EWCA Crim 1051”

Prior to the SOA Sexual Offences Act 2003 the common law through the decision in R v Olugboja  had provided the basis for defining consent, giving it its ordinary meaning and providing that non-consent could range from a violent attack to mere submission.  Section 74 of the SOA defines consent to be if he agrees by choice, and has the freedom and capacity to make that choice. As well as this definition the SOA provides both irrebuttable presumptions  at section 76  deception as to the nature or purpose of the Act; deception through impersonating someone known to the victim – and rebuttable presumptions  at s.75 – threat or fear of violence; unconscious or asleep; unlawfully detained; physical disability making victim unable to communicate their consent or non-consent; stupefied by administering substances (drink or drugs) unbeknownst to the victim. Even with the stat…(short extract)