Facts
- The defendant (D) and his girlfriend hosted a party attended by a female friend (V) who had met D three times previously, with no history suggesting romantic or sexual interest from V.
- Both D and V consumed alcohol at the party, and there was some indication of possible drug use.
- V became intoxicated and fell asleep in a spare room at D's premises.
- D entered the room and engaged in a sexual act with V while she was asleep.
- V woke and instructed D to stop, making clear she had not consented to the act.
- D admitted to the act but claimed he believed V had consented, citing her alleged "sexual advances" during the party.
- The trial judge ruled the evidence insufficient to support a reasonable belief in consent and applied the evidential presumption of non-consent under Section 75 of the Sexual Offences Act 2003.
- D appealed this decision.
Issues
- Whether the defendant’s evidence was sufficient to raise a genuine issue of reasonable belief in consent for consideration by the jury under Section 75 of the Sexual Offences Act 2003.
- Whether the trial judge correctly applied the evidential burden required to rebut the statutory presumption of non-consent when the complainant was asleep.
Decision
- The Court of Appeal dismissed the defendant’s appeal.
- It affirmed that D’s evidence did not provide a legitimate basis for a reasonable belief in consent.
- The court emphasized that evidence must go beyond fanciful or speculative claims and must present objective circumstances indicating a reasonable belief in consent.
- A "single advance" alleged by the defendant, particularly when ambiguous and in the context of the complainant being asleep, was deemed insufficient.
- The court held that a genuine but subjective belief is inadequate unless grounded in objective, realistic circumstances that a reasonable person could interpret as consent.
Legal Principles
- Section 75 of the Sexual Offences Act 2003 creates a statutory presumption of non-consent when the complainant is asleep, placing an evidential burden on the defendant to adduce credible evidence of reasonable belief in consent.
- The defendant must present more than bare assertions; the evidence must objectively support the existence of consent.
- The evidential burden requires tangible and objective indicators of consent; ambiguous or speculative assertions do not suffice.
- The ultimate burden of proof for the offence remains with the prosecution, but the defendant carries the evidential burden to raise a legitimate issue of belief in consent under the statutory presumption.
- The ruling reinforces that explicit and unambiguous evidence is necessary to establish a reasonable belief in consent, especially in cases involving intoxication or unconsciousness.
Conclusion
R v Ciccarelli establishes that in cases engaging the statutory presumption of non-consent, defendants must provide substantive, objective evidence of reasonable belief in consent; mere subjective or speculative claims are inadequate, and ambiguous advances—especially when the complainant is asleep—do not raise a sufficient issue for jury consideration.
