Evidential Presumptions about consent

(1) If in proceedings for a sexual offence to which consent applies, it is proved that– (a) the accused person committed the act; (b) any of the circumstances specified in sub- section (2) existed; and (c) the accused knew that those circumstances existed, the complainant is to be taken not to have consented to the alleged offence unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it. (2) For the purposes of sub-section (1) (b) the circumstances are that– (a) a person was at the time of the alleged offence or immediately before it begun, using violence against him or another person or causing the complainant to fear that immediate violence would be used against that other person; (b) a person was at the time of the alleged offence or immediately before it begun, causing the complainant to fear that violence was being used, or that immediate violence would be used against another person; (c) the complainant was unlawfully detained at the time of the alleged offence; (d) the complainant was asleep or otherwise unconscious at the time of the alleged offence; (e) because of the complainant’s physical disability, the complainant would not have been able at the time of the alleged offence to communicate to the defendant whether the complainant consented; or (f) a person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the alleged offence. (3) If in proceedings for a sexual offence to which consent applies, it is proven that the accused person committed the act and that any of the circumstances specified in sub-section (2) existed, it is to be conclusively presumed– (a) that the complainant did not consent to the alleged offence; and (b) that the accused person did not believe that the complainant consented to the relevant act. 58 (4) For the purposes of sub-section (1) the circumstances are that– (a) the accused person intentionally deceived the complainant as to the nature or purpose of the alleged offence; or (b) the accused person intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant. (5) For the purposes of this Part“mental defect” has the same meaning as “mental defectiveness” under section 2 of the Unsoundness of Mind Act including mental impairment, severe mental impairment, psychopathic disorder and a mental subnormal states which means a state of arrested or incomplete development of mind which includes a significant impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned and any other disorder or disability of the mind; “penetration” includes the continuing act from entry to withdrawal of the penis into the anus or vagina; “sexual in nature” in relation to penetration, touching or any other activity is sexual if a reasonable person would consider that whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual or because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it or both, it is sexual; “touching” includes touching with any part of the body or with anything else, or through anything else; 59 “unsound mind” has the same meaning as given by section 2 of the Unsoundness of Mind Act. CAP. 122.