Introduction

The case of LW v HMA ([2023] ScotHC HCJAC_18) marks a significant development in Scottish criminal jurisprudence concerning sexual consent. This appeal before the Scottish High Court of Justiciary centered on the conviction of LW for rape, a charge stemming from an incident where the complainant was asleep and thus incapable of providing consent. The appellant contested the trial judge's jury directions, particularly the assertion that LW could not have had a reasonable belief in the complainer's consent under these circumstances.

The principal legal issue revolved around whether the trial judge erred in precluding the jury from considering the appellant’s reasonable belief in consent, given the complexities surrounding consent when one party is asleep.

Summary of the Judgment

The Scottish High Court of Justiciary dismissed LW's appeal against his rape conviction. The appellate court upheld the trial judge's direction that no reasonable belief in consent could exist where the complainer was asleep, thereby affirming LW's conviction. The appellate court agreed with the trial judge's interpretation of relevant case law, particularly emphasizing that when a person is asleep, they are incapable of consenting, and therefore, no reasonable belief in consent can be substantiated based on the circumstances presented.

The court also addressed the contention that behaviors such as grinding could indicate consent. However, it concluded that the evidence did not sufficiently establish a reasonable belief in consent beyond the understandable assumption that the complainer was asleep.

Analysis

Precedents Cited

The judgment extensively referenced prior cases, notably:

• GW v HM Advocate (2019) SCCR 175: This case underscored that consent expressed at a time materially remote from the alleged conduct cannot serve as a defense.
• KT v Procurator Fiscal, Falkirk: Emphasized that consent cannot be presumed if one party is incapable of consenting, such as being asleep or unconscious.
• Nyiam v HM Advocate (2021) SCCR 315 and Winton v HM Advocate (2017) SCCR 320: These cases supported the notion that sections relating to incapacity to consent under the Sexual Offences (Scotland) Act 2009 should similarly treat reasonable belief as a potential defense where applicable.
• Maqsood v HM Advocate (2019) JC 45: Clarified that reasonable belief in consent should only be considered where evidence supports that such a belief was plausible.
• Schyff v HM Advocate (2015) HCJAC 67: Highlighted that the complainer's evidence alone can suffice to rebut any claim of reasonable belief in consent.

These precedents collectively informed the court's stance on the improbability of establishing a reasonable belief in consent when the complainer is unable to provide it due to being asleep.

Legal Reasoning

The court's legal reasoning hinged on the incapacity to consent when asleep. The trial judge had directed the jury that if there was corroborated evidence that the complainer was asleep, the appellant could not have a reasonable belief in consent. The appellate court found this direction to be consistent with established legal principles and applicable case law.

The appellant argued that the complainer's actions, such as grinding and making noises, could imply consent. However, the appellate court noted that such behaviors do not sufficiently establish a reasonable belief in consent, especially when the complainer is stated to have been asleep and unresponsive.

Furthermore, the court criticized the trial judge for potentially mishandling the special defense by not adequately exploring whether a reasonable belief in consent could be established, given the circumstances. Nonetheless, it ultimately concluded that the evidence did not support reopening this issue.

Impact

This judgment reinforces the stringent standards surrounding consent in Scottish law, particularly highlighting the challenges in asserting a reasonable belief in consent when the complainer is incapacitated. It serves as a clear precedent that underscores the judiciary's cautious approach in cases where consent is contested under ambiguous or impaired circumstances.

For future cases, this decision emphasizes the necessity for clear and compelling evidence if an accused wishes to rely on a reasonable belief in consent, especially in situations where the complainer's capacity is in question. It may also prompt legal professionals to scrutinize the sufficiency of evidence before asserting defenses related to consent.

Complex Concepts Simplified

Reasonable Belief in Consent

The concept of a "reasonable belief in consent" refers to the defendant's genuine and objectively justifiable belief that the complainer consented to the sexual activity. This belief must align with what a reasonable person in similar circumstances would believe, considering all available evidence.

Capacity to Consent

Capacity to consent delineates an individual's ability to understand and communicate assent or dissent to sexual activity. Factors like being asleep, unconscious, or having a mental disorder can impair one's capacity, making any purported consent invalid.

Corroborated Evidence

Corroborated evidence refers to additional independent evidence that supports a particular fact or assertion in a case. In this context, it pertains to evidence confirming that the complainer was indeed asleep during the alleged incident.

Conclusion

The appellate decision in LW v HMA affirms the critical legal stance that consent cannot be presumed or reasonably believed when the complainer is unable to provide it due to being asleep. By upholding the trial judge's directions and dismissing the appellant's claims of a reasonable belief in consent, the court reinforces the imperative of safeguarding individual autonomy and consent within sexual interactions.

This judgment serves as a pivotal reference point for future cases, clarifying the boundaries of consent and the stringent criteria required to establish a reasonable belief in its presence. It underscores the judiciary's role in ensuring that consent is both informed and unequivocal, thereby fortifying protections against sexual offenses.