R v Jheeta [2007] 2 Cr App R 477

Definition of ‘relevant act’ in s.76 of the Sexual Offences Act 2003

Facts

The defendant and the victim were in a consensual sexual relationship. The defendant began sending anonymous threatening messages to the victim, and promised to protect her when she confided in him. She later tried to end her relationship with the defendant, to which he responded by sending messages pretending to be a police officer telling her she should sleep with him or be criminally liable.

Issues

The offence of rape under s.1 of the Sexual Offences Act 2003 requires an absence of consent on the part of the victim, and the absence of a reasonable belief in consent on the part of the defendant. s.76 imposes a conclusive presumption of the absence of consent and the absence of a reasonable belief in consent in circumstances where the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act. The issue in this case was the identity of the ‘relevant act’ to which the deception had to relate.

Held

The Court of Appeal held that the ‘relevant act’ to which s.76 referred to was the act of vaginal, anal or oral penetration. As such, for s.76 to apply, the victim had to be deceived as to the nature and purpose of the sex itself, and not merely deceived as to extraneous circumstances. For this reason, it was held that the application of s.76 would be rare, and it did not apply in this case.

However, as the defendant had admitted that the victim was not truly consenting to many of their sexual encounters, the rape convictions were held to be safe regardless of whether the s.76 presumption applied. The convictions were therefore upheld.