R v Ciccarelli [2011] EWCA Crim 2665

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

1. 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.
2. 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.