Non-consensual “love bites” can amount to sexual assault where consent to neck kissing is expressly withheld from suction causing a mark

1) Introduction

This appeal concerned the boundaries of consent in a sexual context where the parties agreed to sexual intercourse and to some intimate touching (kissing the complainant’s neck), but the complainant (referred to as AB) said she had expressly refused permission for a particular form of touching: a “love bite” (suction to the neck intended to, or likely to, leave a bruise/mark).

The appellant was convicted at Hove Crown Court of sexual assault contrary to section 3 of the Sexual Offences Act 2003 (count 1) in relation to a love bite said to have been inflicted during consensual sex in a hotel room. An alternative count of assault occasioning actual bodily harm (ABH) under section 47 of the Offences Against the Person Act 1861 was on the indictment for the same incident (count 2). He was acquitted of later counts (a second alleged love bite and its ABH alternative).

The key issue on appeal was narrow but important: was there a case to answer on sexual assault at all, given the defence argument that AB consented to the sexual touching (neck kissing) and objected only to the result (the bruise/mark)?

2) Summary of the Judgment

The Court of Appeal dismissed the appeal and held that the trial judge was right to leave count 1 (sexual assault) to the jury. On AB’s evidence, there was a clear evidential basis that:

• AB consented to some neck contact (kissing),
• but did not consent to suction/biting intended or likely to create a “love bite”, and had said so in advance,
• and the “love bite” act was sexually motivated/sexual in nature and different from ordinary kissing/caressing.

Critically, the Court held that the act of giving a love bite is “indivisible” from the mark left; the complainant’s objection could properly be understood as an objection to the act that caused the mark.

The Court rejected the defence analogy with HIV transmission cases and held that Regina v Dica [2004] 3 WLR 213 did not assist.

3) Analysis

A) Precedents cited

The only authority substantively relied upon in argument and addressed in the judgment was Regina v Dica [2004] 3 WLR 213.

The Court of Appeal distinguished Dica as dealing with consent to the risk of a consequence (disease transmission) in circumstances where the sexual act itself was consented to. By contrast, on AB’s account in Collins, the jury could find that the specific physical act (suction/biting sufficient to cause a love bite) was itself withheld from the scope of consent, even though other sexual contact was consented to.

B) Legal reasoning

(i) The core consent question: conditional and specific consent

The appeal turned on a practical but legally significant point: consent in sexual offences is act-specific. A person may consent to “A” (kissing the neck) but not to “B” (suction/biting intended or likely to leave a bruise). The Court accepted that, on AB’s evidence, the refusal related to what the appellant did, not merely what happened afterwards.

(ii) “Indivisible” act and mark

The Court’s key proposition is at paragraph 21: “the act of giving a love bite is indivisible from the mark that is left.” This addresses the defence framing that AB objected only to the bruise (a non-sexual consequence) rather than the sexual touching.

The Court treated the “mark” as evidencing the nature of the act: suction/force beyond ordinary kissing. Therefore, the jury could properly consider whether AB did not consent to that sexual touching, and whether the appellant intentionally performed it.

(iii) No-case-to-answer posture and jury function

Procedurally, the appeal attacked the refusal of a no-case submission. The Court’s approach is orthodox: where the complainant’s evidence, if accepted, could prove the elements of the offence, the issue is for the jury. Here, AB’s evidence (express prior refusal, physical attempts to prevent neck biting/suction, and immediate complaint on seeing the mark) provided a sufficient evidential platform for sexual assault.

(iv) Clarifying the “touching” alleged (Route to Verdict)

Although not appealed, the Court noted an important summing-up refinement. The initial route to verdict asked whether the appellant intentionally “touched” AB’s neck, which risked conflating: (a) consensual neck kissing; with (b) the alleged non-consensual love bite. The judge therefore amended the question to specify “touched (i.e. gave her a love bite)”.

This matters because the case illustrates that, where some touching is admitted/consented to, directions must focus the jury on the particular touching alleged to be non-consensual.

C) Impact

• Charging and categorisation: The decision supports charging a non-consensual love bite as sexual assault (s.3 Sexual Offences Act 2003), not merely as ABH, where the act occurs in a sexual context and is properly characterised as sexual touching.
• Scope of consent in sexual activity: It reinforces that consent can be granular. Agreement to sexual intercourse and to some intimate contact does not entail agreement to all forms of sexual touching or intensity.
• “Consequence” vs “act” arguments: Defendants may attempt to reframe objections as directed only to outcomes (marks/bruises) to escape sexual-offence liability. This case signals that where the “outcome” is inherent in, and evidences, the nature of the touching, the court may treat the two as effectively inseparable.
• Directions in mixed-consent cases: Trial judges should ensure routes to verdict and directions identify the alleged non-consensual act with precision, particularly where the complainant consented to adjacent or similar touching.

4) Complex concepts simplified

• Sexual assault (s.3 Sexual Offences Act 2003): involves intentionally touching another person, the touching being sexual, and the other person not consenting (with no reasonable belief in consent). “Sexual” is assessed by the nature/circumstances/purpose of the touching.
• Consent can be limited: consent is not “all or nothing”. Someone can consent to kissing but not to biting/suction that causes bruising.
• No case to answer: a judge stops the case only if, taking the prosecution evidence at its highest, a properly directed jury could not convict. If the evidence could prove the offence, the jury decides.
• ABH as an alternative count: where the same incident could be characterised as a sexual offence and/or a non-sexual offence causing injury, indictments sometimes include an alternative so the jury can convict of one if not sure of the other—provided the legal elements are met.

5) Conclusion

R v Collins confirms that a “love bite” can found a conviction for sexual assault where the complainant’s evidence shows that consent to neck kissing did not extend to suction/biting that creates the mark. The Court’s central clarification—that the love-bite act is “indivisible” from its mark—limits attempts to reframe the issue as mere objection to a non-sexual consequence, and underscores the act-specific nature of consent in sexual offences.