Consent in abuse claims:  ABC v Durham County Council [2022]

There is a clear distinction between rape and sexual activity in breach of trust and the dividing line between them is consent: HH Judge Mark Gargan (para 126)

Background
The claimant alleged that she was raped by a residential care worker (XY) on 12 January 2008 when she was 16. There was no grooming or emotional manipulation and her evidence was that only in retrospect did she consider a rape had occurred. The residential worker who was 29 at the time of the alleged sexual assault denied that any form of sexual interaction took place and the defendant relied on a limitation defence, which succeeded.

The claim failed on the grounds of limitation but HH Judge Mark Gargan, applying Bowen, made a finding on the consent issue, taking the claimant’s case at its highest.

The claimant’s case

The claimant’s case was that the combination of: (i) her psychological make-up; (ii) XY’s position as a residential worker; and (iii) the claimant’s relationship with XY, was sufficient to establish that although she submitted to sexual intercourse (and appeared to do so willingly) there was no true consent. 

Judge’s findings

The judge reiterated that whether the claimant consented is a question of fact and set out Cutts J’s summary of the law on consent from the case of LB of Harringey v FZO:

A person consents to sexual activity with another if they have the freedom and capacity to consent.  Submission is not the same as consent.

The judge found that it was clear the claimant had the capacity to consent.  Therefore the question was whether or not she did so.  On the basis of the evidence he concluded he was firmly of the view that the claimant did consent to any intercourse that took place for the following reasons:

  • The claimant was sexually aware at the relevant time;
  • There was no evidence XY had subjected her to special treatment before the date of the alleged rape;
  • There was no evidence that XY offered any inducement to the claimant to consent to intercourse;
  • There is no evidence that XY made any threats to the claimant or coerced her into having intercourse;
  • The claimant’s contemporaneous understanding appears to have been that the intercourse was consensual in that, for example, she described “bragging about it” to another resident and that it had made her “feel special”;
  • The claimant was right to assert that any intercourse between her and XY was “wrong”.  It would have been a criminal offence.  However, it was not a tort if the claimant was “willing” in the sense that she freely consented to it;
  • The claimant’s Counsel’s submissions came close to asserting that no one under 18 could consent to intercourse with someone in a position of trust.  The judge stated he did not regard that to be the law.  There is a clear distinction between rape and sexual activity in breach of trust and the dividing line between them is consent;
  • The claimant submitted that the claimant’s psychological history may have made her more likely to agree to intercourse, in particular because she was vulnerable and in need of love and affection and because she was impulsive.  However, the judge found those factors would explain why the claimant consented rather than explaining that her consent was not freely given;
  • The claimant was right to assert she was not an adult.  She may well not have realised XY was committing a crime if he had intercourse with her.  However, she understood what intercourse was and that having such intercourse with XY was inappropriate (or “naughty” as she termed it).  Despite this the claimant agreed to intercourse;
  • The judge accepted that the claimant may have lacked some of the maturity to place the act in its full social context.  However, he said that is something that may be said of many teenagers who have sexual intercourse.  There is a myriad of situations in which greater maturity or hindsight can lead people to conclude that they had been unwise to engage in sexual intercourse.  However, the judge commented that does not mean that they did not give a valid consent at the material time.

The judge concluded that on all the evidence, assuming intercourse took place, it was more likely than not that the claimant freely consented to engage in it.  He rejected the claimant’s argument that a criminal offence for breach of trust under section 16 of the Sexual Offences Act 2003 was equivalent to a lack of consent and instead he applied the common law test and found that this was not a case where the claimant had submitted and so not consented.

It is rare consent is contested in abuse claims due to the sensitive nature of the issue.  The key factors in this case were a lack of any evidence of grooming on the part of the residential care worker and that the claimant’s contemporaneous understanding was that the intercourse was consensual even though she later developed the view that it was not.  This case is also a reminder of the different approaches to the issue of consent in criminal and civil law – any sexual activity between the claimant and XY would have been a criminal offence but it would not have been a tort if the claimant freely consented to it.


Written by Catherine Davey at BLM (catherine.davey@blmlaw.com)

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