Coercive Control and Consent to Sex

Under the Sexual Offences Act 2003, consent is defined as “if he agrees by choice, and has the freedom and capacity to make that choice.” While this is a good foundation allowing the court to decide whether the victim was truly at liberty to consent to sexual activity, it fails to properly address subtle coercive control where a victim may believe they have no choice but to consent to which the law regards as “valid consent”. I question whether the law adequately covers situations where the victim only consents under subtle duress by the perpetrator.

Currently, the legal framework around consent is covered by s75 and s76 of the Sexual Offences Act 2003. These sections set out evidential and conclusive presumptions about consent. There are 4 main factors set out by these sections regarding this, whether the victim was physically forced, threatened, unconscious or through deception. However, case law has displayed that these scenarios can be more complicated.

R v Olugboja (1982) established the precedent that submission does not equal consent and how juries cannot be left to interpret consent based on their own knowledge. This is also supported by R v Kirk (2008), which established that desperation did not mean consent. These cases highlight the grey area in the law. 

Despite coercive control not being recognised in sexual cases, it is recognised in the Serious Crime Act 2015, displaying the law's ability to recognise coercive control as a factor in abuse towards victims in these specific cases. This demonstrates that the law does, in fact, have the capability to factor in coercive control in abuse. Significantly, it is recognised in Domestic violence but not rape, since domestic violence and rape are more often than not connected. This problem is highlighted by feminist legal thinker Catherine Mackinnon, who argues that consent is based on a power imbalance, not free choice. She writes, “The law of rape presents consent as free exercise of sexual choice under conditions of equality of power without exposing the underlying structure of constraint and disparity”. The law left in a serious dilemma, on one hand, not expanding the criteria could lead to undermining the autonomy of victims in such situations, on the other, it could also lead to the over-criminalisation of appellants in cases of conflicting testimony where it could be argued both are at fault in some aspects.

I would make the suggestion that, rather than adding more presumptions, the courts should strengthen jury directions on consent, giving them a clear definition to apply to the case they will hear. UK law definitely has the capability of addressing coercion more robustly, as seen in other jurisdictions such as Scotland’s Sexual Offences Act 2009, and Canada’s Ewanchuk 1999.

In conclusion, the current interpretation of consent leaves gaps in its protection of victims, especially in cases involving subtle coercion. Rape occurs in a variety of circumstances requiring the law to create a more robust framework through clearer Jury guidance.