Issues of Consent in Sexual Abuse Cases

The issue of consent can be a live issue in sexual abuse cases.

It becomes an issue when the defendant or alleged abuser, if you prefer, admits to having sexual activity with his/her victim, or as they say willing partner, and that what took place was consensual.

In the recent case of Reynhard Sinaga who is thought to be the UK's most prolific rapist ever, it became clear that for several years, until he was caught in 2017, he preyed on young men who had been enjoying a night out.

Reynhard Sinaga, a 36-year-old postgraduate student, had made his home in Manchester for more than seven years. He has been sentenced to life imprisonment following a trial at Manchester Crown Court.

Sinaga, originally from Indonesia, was a perpetual student. He already had four degrees and was studying for a doctorate. By night, however, he was a serial sex offender.

He has been found guilty of drugging, raping and sexually assaulting 48 men, but police believe there are among at least 190 victims.  They are able to be so precise about these numbers because Sinaga filmed his attacks and collected what detectives call "trophies" - items or information stolen from his victims.

Sinaga typically approached his victims in the street. His targets were men mostly in their late teens or early 20s who had been out drinking, often in the nearby nightclubs. Some were on their way home; others had become separated from friends.

Many were too drunk to remember their conversation with Sinaga, but for those who did there was no indication of a sexual motive. Sinaga used various pretexts to entice each to his flat.

Some victims could recall being provided with a drink and then blacking out having been drugged. The judge said she was sure that Sinaga had used a form of date rape drug such as GHB (gammahydroxybutyrate). GHB is a class C drug and anyone found in possession of it can be imprisoned for up to two years.

Sinaga drugged his victims before assaulting them while they were unconscious. When the victims woke up many of them had no memory of what had happened.

He denied the charges, and claimed all the sexual activity was consensual and that each man had agreed to being filmed while pretending to be asleep - a defence described by the judge as "ludicrous".

Followers of the television soap Coronation Street will be familiar with the current storyline of David Platt who was raped by Josh Tucker. Viewers are watching Josh’s trial develop with the defence based on consent.

What is consent?

Consent is defined by section 74 Sexual Offences Act 2003.

Someone consents to vaginal, anal or oral penetration only if s/he agrees by choice to that penetration and has the freedom and capacity to make that choice. Consent to sexual activity may be given to one sort of sexual activity but not another, e.g.to vaginal but not anal sex or penetration with conditions, such as wearing a condom. Consent can be withdrawn at any time during sexual activity and each time activity occurs. In investigating the suspect, it must be established what steps, if any, the suspect took to obtain the complainant’s consent and the prosecution must prove that the suspect did not have a reasonable belief that the complainant was consenting. Recent high profile cases concerning football and rugby players have highlighted how difficult it can be to prove that the suspect(s) did not have a reasonable belief that the complainant was consenting.

The issue of consent can remain live even if in the wake of a criminal conviction the complainant seeks compensation either from his/her abuser or those responsible for him/her for example an employer.

The defence that is argued is that the criminal components of the crime had been committed, for example by a teacher having sexual activity with a student over the age of 16 (the criminal age of consent) but he/she was old enough or mature enough to give full consent. Similarly, in the case of a child under 16 who was sexually assaulted, the defence might be run that even though the crime was committed there was consent. This may strike many as unpalatable but the realities of these cases are that motives and facts have to be examined with great care. In the Sinaga case his “defence” was seen for what it was and dismissed. There was no consent – the victims had been drugged and were unconscious. There are other cases though where it can be very difficult to unravel what was going on in the minds of those involved.