In crime consent is not a defence to an offence under the Sexual Offences Act 2003, whereas in tort consent is a complete legal defence to the tort of trespass to person.
There are three recent school cases which deal with the issue of consent, two of which highlight the importance of distinguishing between the consent in crime and in tort.
XXX v YYY (unreported) handed down on 13 January 2020 by HHJ Saggerson
The claimant was a pupil at the defendant’s school. In 2012, at the age of 16, she met M, a 23 year old teacher who had just joined the school. They became friends and in or around February 2013 they began a romantic relationship. Shortly afterwards they were seen in a romantic embrace by another teacher who reported them to management and the police were informed.
Under the Sexual Offences Act 2003 it is illegal to engage in sexual activity with a person under 18 whilst in a position of trust regardless of whether the other person consents to it.
In March 2013 the claimant told the police that everything that had happened with M was consensual. M subsequently pleaded guilty to three counts of sexual activity with a person under 17 whilst in a position of trust.
Although the claimant had told police that she had consented, over time she came to the view that she had not consented in any meaningful sense. It was her case that apparent consent was not real consent or was rendered void by M’s exploitation of her vulnerability (diagnosis of a rare congenital disorder of the reproductive system in the summer of 2012).
The defendant argued that the claimant gave consent, citing amongst other things her accounts to the police and others at the time as well as contemporaneous texts and emails between herself and M.
The judge found that the claimant had consented. He cited sixteen reasons (none of which he said was conclusive) arising from a careful examination of the evidence about their relationship. For example, the judge found that the claimant liked M before he was likely to have appreciated this; that M’s sympathetic response to her disclosure of her physical diagnosis was genuine; that the circumstances in which the relationship developed did not involve any significant features of isolation or separation from the Claimant’s friends or peers; that gifts were exchanged mutually; that the claimant was instrumental in suggesting meetings; and that the claimant teased M about his age in their email exchanges, which was inconsistent with the suggestion that she was overawed by M’s authority.
The judge accepted that the claimant had come to regret the relationship but found that her regret did not reflect her state of mind at the time it took place.
FZO v London Borough of Haringey (2020) EWCA Civ 180 – 18 February 2020
The claimant, a pupil, was seriously sexually abused by his teacher at the school from 1980-1982 and then again in 1983. The claimant kept in contact with his former teacher after he left the school, engaging again in a sexual relationship in 1988 when he was in his early 20s.
The claimant accepted that, although the abuse ended in 1988, he continued to have contact with the abusive teacher until as recently as 2011-12.
The PE teacher was convicted of the assaults in question. It was found at trial that he had manipulated and groomed the child into sexual activities.
There were five grounds of appeal one of which was consent which explored the nature of consent in sex abuse cases.
The facts were unusual. The defendant argued that the claimant had consented to the sexual activity that took place after his 18th birthday. The trial judge concluded that the later assaults were simply a continuation of the behaviour that commenced while the assailant was his teacher and before the claimant perceived their abusive nature. In all the circumstances of the case, she concluded that the consent in adulthood was not genuine; it was overridden by psychological coercion, derived from grooming and abuse during the child’s time at the school.
The Court of Appeal declined to interfere with this finding of fact which had been reached following an assessment of detailed factual and expert evidence and therefore the judge’s determination was upheld.
In concluding comments Lord Justice Simon and Lady Justice Davies rather surprisingly expressed significant “disquiet” about some of the Judge’s findings of fact but felt unable to interfere.
EXE v The Governors of the Royal Naval School  EWHC 595 QB 13 March 2020
The claimant was a pupil at the defendant’s school. In 1991, at the age of 14, she alleged she was groomed and had sexual relations on numerous occasions with “Hughes”, a kitchen porter employed by the school.
Unbeknown to the school, Hughes had a criminal record which included two counts of unlawful sexual intercourse with underage girls. In 1992, Hughes pled guilty to three counts of unlawful sexual intercourse with the claimant. EXE brought proceedings against the school for damages.
The High Court (Mr Justice Griffiths) found for the defendant on all issues including limitation, vicarious liability, negligence and consent. That is despite the allegations dating from the 1990s, previous criminal proceedings having taken place and the accused having been convicted.
The court rejected the claimant’s evidence that she had been “brainwashed” or coerced by Hughes. Instead whilst acknowledging that it might be argued that a child under 16 could never consent, the judge found that the claimant had been a willing participant and that all of the sexual acts were consensual. The judge placed great emphasis on what he regarded as the greater reliability of the claimant’s police witness statement, which had been given shortly after the index events and strongly indicated that she did consent. On the first occasion of sexual intercourse the claimant told the police that she had spoken to Hughes about her being 14 years old and what her parents would say if they found out and that she still wanted to have sex with him. The claimant also told the police that she was in full agreement to these actions and it was what she wanted. The judge found that “what followed was fully considered, fully consensual, and welcomed by EXE, who was not groomed into it.”
As such, although a crime had been committed, the court found that a tort had not been. While consent was not a defence to the criminal charges, it was a valid defence to a claim of trespass to the person.
What do these cases tell us?
The cases of XXX and EXE demonstrate that that it is possible to run a defence based on consent in certain circumstances, in particular where there is contemporary police evidence that a claimant declared that they consented to the sexual activity despite it being an offence under the Sexual Offences Act. However, the issue of consent will always be fact sensitive and require a careful analysis of the evidence.
Catherine Davey, Associate, BLM