A Matter of consent
Abuse Aware | February 2020
The Central London County Court has found for the defendant in a sexual abuse claim centring on the challenging issue of consent. Daniel Tyler, Associate, who acted on behalf of the defendant, considers the decision and its potential impact on other similar claims.
The defendant is a school of which the claimant was a former pupil. Her claim arose from acts allegedly committed by one of the defendant’s then teachers, M, in 2013 and 2014.
The claimant turned 16 in May 2012 and became a sixth former that September. That month she met M, who was about to turn 23 and had just joined the defendant’s staff. M did not teach the claimant, but he did have pastoral and supervisory responsibilities in her boarding house. He and the claimant became friends and in or around February 2013, began a romantic relationship. They kissed for the first time on 14th February 2013. On 26 February they were seen in a romantic embrace by another teacher, who immediately reported what she had seen to her superiors who promptly informed the police.
Under section 16 of the Sexual Offences Act 2003 (‘the SOA’) it is illegal to engage in sexual activity with a person under 18 whilst in a position of trust, regardless of whether the other person consents to it. Although the claimant was over 16 (the statutory age of consent) M was committing a criminal offence. On 27 February 2013 M was summarily dismissed from his post and arrested. Three weeks later the claimant gave a police interview during which she said that everything that happened between herself and M was consensual. In July 2013 M pleaded guilty to three counts of sexual activity with a person under 17 whilst in a position of trust. He was sentenced to eight months imprisonment. He was also made subject to a Sexual Offences Prevention Order (‘SOPO’) forbidding him from any contact with the claimant for 10 years.
After M was released in December 2013 the claimant contacted M’s mother via social media and continued to over the subsequent months. She also met M at the British Museum on 14th February 2014. There were continuing electronic communications until June 2014 when all contact stopped. The claimant subsequently disclosed the contact to her mother who informed the police. In October 2015 M admitted breaches of the SOPO and was given a suspended prison sentence. By that point, the claimant had initiated a compensation claim against the defendant.
The claim was founded on three causes of action, all of which were denied by the defendant: trespass to person; intentional infliction of harm (the Wilkinson v Downton; O v Rhodes liability); and harassment contrary to sections 1 and 3 of the Protection from Harassment Act 1997. The claimant alleged that as a result of the teacher’s conduct, she suffered severe PTSD and relied in this regard on the evidence of Dr Roger Kennedy. This was denied by the defendant, relied on the evidence of Professor Anthony Maden, who considered that the claimant did not develop a mental illness. The trial was heard by HHJ Saggerson in December 2019. In his judgment, he made it absolutely clear that the claimant was blameless. Nevertheless, he dismissed the claim in its entirety.
Trespass to person
That M had sexually touched the claimant was not in dispute. The question was whether that touching was unlawful at common law. To be unlawful, the touching must not only be deliberate (which it was), but also be without consent. This was the key issue. In March 2013 the claimant had told police that everything that had happened between herself and the teacher was consensual. However, over time the claimant came to the view that she had never really consented in any meaningful sense. It was her case that apparent consent was not real consent or was rendered void by M’s exploitation of what he knew to be her vulnerability.
This vulnerability arose principally from her being diagnosed with a rare congenital disorder of the reproductive system in the summer of 2012. By contrast, the defendant contended that the claimant clearly did give consent, citing among other things her accounts to the police and others at the time as well as the contents of contemporaneous texts and emails between herself and M. While the claimant came to regret the relationship this does not mean that her earlier involvement was anything other than consensual.
At the outset the judge helpfully summarised the law on consent: ‘It is for the defendant to prove that consent was freely, properly and fully given…Consent…involves more than acquiescence or submission. Consent requires the engagement of the individual’s free will and free choice. Whether a person of any age has consented depends on an assessment of all the circumstances, including their own evidence, as they affect that individual. No single factor can be conclusive. The focus is only on the claimant. (The alleged perpetrator’s) belief is irrelevant. Where an individual’s apparent consent or freedom of action or thought is undermined or subverted by their situation, circumstances or the actions or words of others, whether an alleged perpetrator of abuse or someone else, the apparent consent may not be real consent at all. Whether a person truly consented to any activity in this enriched sense is a question of fact.’
The judge found that the claimant had indeed truly consented. He cited sixteen reasons (none of which he said was conclusive) arising from a careful examination of the evidence about their relationship. By way of example, the judge found that the claimant liked M before he was likely to have appreciated, or at least been clear, that that was the case and that M’s sympathetic response to her disclosure of her physical diagnosis was genuine. Moreover, the circumstances in which the relationship developed did not involve any significant features of isolation or separation from the claimant’s friends or peers.
The judge also noted that gifts were exchanged mutually and the claimant was instrumental in suggesting meetings. The claimant also teased M about his age in their email exchanges, which was inconsistent with the suggestion that she was overawed by M’s authority. The judge weighed these issues up alongside the claimant’s vulnerability and M’s position.
In the final analysis the claimant had ‘actively participated of her own free choice and with full and proper consent’. The judge accepted that the claimant had come to regret the relationship. Nevertheless her regret did not properly reflect her true state of mind at the time it took place.
Intentional infliction of harm
The claimant alleged that the three key elements of this tort were made out in that:
- M behaved unjustifiably towards the claimant (the conduct element)
- M intentionally exposed the claimant to a foreseeable risk of injury or severe distress (the mental element)
- The claimant suffered psychiatric injury (the consequence element).
The judge accepted that the teacher behaved unjustifiably. However, he did not accept that the other two elements were made out.
As to the mental element, the judge acknowledged that this was more than just a question of M’s subjective intentions. If M’s conduct was such that either physical harm or severe mental or emotional distress was so obvious that he cannot realistically assert that the consequences were unintended, the element is proved. However, the judge found that this was not the case here. He reiterated that the relationship was consensual and lacked the features of grooming. In addition it was not obvious that the claimant would suffer severe mental or emotional distress as a result of the relationship or the consequences of its break-up (if indeed she did suffer any severe consequences).
As to the consequence element, the judge was not satisfied that the claimant suffered a recognised psychiatric condition, rejecting Dr Kennedy’s evidence in favour Professor Maden’s. The judge found Dr Kennedy’s reports ‘inadequate’ and was not satisfied that he had ‘paid any proper attention to the DSM diagnostic guidelines for PTSD’. Professor Maden was ‘as impressive as Dr Kennedy was unimpressive.’
The judge found that he had conducted a thorough investigation into the claimant’s mental health, comparing her subjective description of being in a “living hell” from autumn 2013 with her ability to function on a daily basis, her normal academic progress, and her continued involvement in extra-curricular pursuits. He accepted Professor Maden’s conclusion that the claimant did not experience a mental illness.
This cause of action failed because the judge was not satisfied that M’s course of conduct amounted to harassment. The judge excluded the course of conduct up to and including the arrest and the claimant’s police interview largely for the reasons given in the context of assault and consent. As to the subsequent contact, the judge did not accept that M did anything that constituted harassment or that a reasonable person in possession of all the relevant information would have considered harassment. It was the claimant who set up an email address to contact M and his mother, carried on communicating with M’s mother, voluntarily met him at the British Museum and at least tolerated a long telephone call in June 2014.
The judge found that on none of these occasions was the claimant emotionally cornered into inescapable, or difficult to avoid, contact or communication; neither was her freedom of choice so subverted as to counter what appeared to be voluntary, mutual contact.
The case underlines the important distinction between crimes and torts. M clearly breached section 16 of the SOA and the judge considered his convictions and sentences ‘entirely appropriate’. Nonetheless, a breach of section 16(1) is not actionable as a tort. Moreover, as far as the claimant’s other causes of action were concerned the judge made it clear that M’s criminality did not ‘in itself vitiate or undermine the claimant’s consent’. As we have seen consent is not a relevant factor in determining guilt under section 16(1).
More fundamentally, the judgment shows that contrary to what is sometimes suggested, there are cases in this difficult and sensitive area in which consent is a valid and appropriate defence. Such cases have be chosen with considerable care, but they do exist. Defendants should not feel constrained or inhibited by raising this defence where it is appropriate to do so on proper analysis of the facts of a particular case.
For more information, please contact Daniel Tyler, Associate