C, Regina v: CACD 2008

The defendant appealed against his conviction for sexual assault on a female when she suffered a mental condition which prevented her indicating her refusal of the touching.
Held: The complainant’s irrational fear due to her mental disorder could not be equated with a lack of capacity to choose, and there was no evidence that she was physically unable to communicate any choice that she had made. ‘Irrational fear that prevents the exercise of choice cannot be equated with lack of capacity to choose. We agree with Munby J’s conclusion that a lack of capacity to choose to agree to sexual activity cannot be ‘person specific’ or, we would add, ‘situation specific’.’ However the court disagreed with the judge’s direction that if the complainant were unable to say no because of an irrational fear, this was capable of amounting to an inability to communicate her choice


[2008] EWCA Crim 1155, [2009] 1 Cr App R 211


Sexual Offences Act 2003 30(2)(b)


England and Wales


AppliedX City Council v MB and others; re MAB FD 13-Feb-2006
The adult patient was autistic. The doctors said that he lacked capacity, and the authority sought to prevent his return to Pakistan with, they thought, a view to being married. . .
AppliedLocal Authority X v MM and Another; re MM (An Adult) FD 21-Aug-2007
The test for capacity to consent to sexual relations must be the same in its essentials as the test in the criminal law; more importantly ‘a woman either has capacity, for example, to consent to ‘normal’ penetrative vaginal intercourse, or she does . .

Cited by:

Appeal fromRegina v C HL 30-Jul-2009
Consent to Sex Requires Capacity
The prosecution appealed against the reversal of the defendant’s conviction for a sexual assault of a woman said to be unable to communicate her refusal to sex because of her mental disorder.
Held: The appeal was allowed, and the conviction . .
Lists of cited by and citing cases may be incomplete.


Updated: 22 August 2022; Ref: scu.373761