A husband’s admission that he drugged and sexually abused his wife over more than two decades has brought the law on consent into sharp focus. At Manchester Minshull Street Crown Court, the man pleaded guilty to a total of 60 criminal offences. He cannot be identified because naming him would risk identifying his wife, who is entitled to lifelong anonymity.
The case provides a starting point for explaining how the law in England and Wales approaches sexual activity involving someone who is asleep, unconscious or so affected by drugs that they cannot make decisions for themselves. The questions are not confined to whether the person said ‘no’. They concern whether that person could even make a choice in the first place and whether the defendant reasonably believed there was consent.
What has been admitted in the Manchester case?
The defendant, who is in his 60s, had previously admitted 15 offences. His further guilty pleas concerned another 45 charges. Taken together, the admissions include 21 counts of rape, 15 counts of assault by penetration and four counts of attempted rape, alongside other offences, including administering a substance with intent and sharing intimate images.
The offending occurred between 2004 and 2025. The prosecution described repeated rape and sexual assault at the woman’s home while she was unconscious after being drugged by her husband.
Twelve other men face allegations involving the same woman and deny the charges against them. Their cases must be distinguished from the offences the husband has admitted: those disputed allegations remain to be determined. A jury had been sworn, but the prosecution had not yet opened its case. At the time of writing, we have no information about those men and will make no comment about the allegations concerning them. The admissions by the husband do provide an opportunity for us to examine the law on consent.
What does consent mean in law?
Consent is defined in law by section 74 of the Sexual Offences Act 2003, which tells us that a person consents when they agree by choice and have the freedom and capacity to make that choice. There are therefore three connected questions: did the person agree, were they free to decide, and were they capable of making the decision?
We can see that because they must not only agree but do so freely, it is not enough to show that the complainant did not resist or even just that they did not say ‘no’ at some point. The complainant must also have capacity to make the choice at the time consent is given. This is the point where intoxication, whether voluntary or not, comes into play. A defendant who is fighting a case on the basis of consent should therefore be looking to prove to the jury that the complainant not only consented freely to the sexual activity but that she had the capacity to do so. Frequently, this will be established through extraneous evidence such as showing the complainant’s behaviour through witness evidence or CCTV to establish that she was not so intoxicated that she could not make decisions for herself.
The law does assume that there was no consent in some situations, such as where violence is used during or just before the sexual activity, where the complainant is being held captive unlawfully and against her will, where the complainant was asleep at the time, and so on. This is a rebuttable presumption, which means a defendant can produce evidence to prove the presumption should not count in his particular case.
Our knowledgebase guide to consent in sexual offences explains these principles in more detail.
For rape, the prosecution must prove intentional penetration of the vagina, anus or mouth with a penis, that the complainant did not consent, and that the defendant did not reasonably believe that the complainant consented. A genuine belief is not enough unless it was also reasonable. The court must consider all the circumstances, including any steps taken to establish consent. These matters must be proved beyond reasonable doubt, subject to the operation of the statutory presumptions discussed below.
Therefore, we can see that a defendant in a rape case can contest an allegation both on the basis that the complainant actually did consent to sex but also on the alternative that if she did not actually consent then the defendant had a reasonable belief that she was consenting. The reasonableness of the consent will need to be established through evidence, usually from the people involved, about what happened and what was said so that the jury can understand why the defendant believed he had consent.
What happens when someone is asleep or unconscious?
Someone who is asleep cannot make a new decision about sexual activity at that moment. The legislation deals expressly with this situation, but its mechanism needs to be explained accurately: sleep gives rise to an evidential presumption, rather than an automatic finding of guilt.
Under section 75(2)(d), where the prosecution proves the relevant sexual act, that the complainant was asleep or otherwise unconscious, and that the defendant knew this, the law presumes both that the complainant did not consent and that the defendant did not reasonably believe there was consent.
These presumptions can be challenged. There must, however, be sufficient evidence to raise a real issue about consent or reasonable belief in consent. The judge decides whether that evidential threshold has been met. The evidence might come from the defendant, another witness or the questioning of prosecution witnesses; it does not necessarily require the defendant to give evidence personally.
This is not a requirement for the defendant to prove innocence. Where sufficient evidence raises the relevant issue, the prosecution must establish its case in the ordinary way but without sufficient evidence to rebut the presumption it remains, which will be fatal for most defence cases.
Involuntary intoxication – drugging somebody
Section 75(2)(f) creates a further presumption where someone has, without the complainant’s consent, administered a substance or caused them to take it, and that substance was capable of causing the complainant to be “stupefied or overpowered”. Note that the requirement is not that the complainant must actually have become stupefied or that the substance allowed her to be overpowered.
It is not necessary for the prosecution to show that the defendant accused of the sex crime administered the intoxicating substance himself. Anybody can administer it, the requirement is that the defendant knew that it had been administered and that it had been done so against the complainant’s will.
Voluntary intoxication
Taking a substance voluntarily is not consent to sex. It is, however, important to distinguish intoxication from incapacity.
We all know that it is perfectly possible to be both drunk and to retain sufficient capacity to agree to have sex with another person. We also all know that too much alcohol can leave somebody unable to make an informed decision or even unable to stay awake. The same is very much true of a number of drugs, both illicit and legal. In the case of R v Bree [2007] EWCA Crim 804, the Court of Appeal explained that capacity to make decisions can disappear before a person becomes unconscious. This should not be a surprise to any adult in the UK who has consumed alcohol to excess in their lives.
The question is the person’s condition at the time of the sexual activity and in the run up to it. It is perfectly possible for a complainant to initially agree to sexual activity but then to become too intoxicated to understand what is going on, or even to be so drunk that they are unable to express that they no longer wish to continue. In that circumstance, the court will have to look very carefully at whether a) the complainant had consented; and b) whether the defendant had reasonable grounds to believe that he still had consent to continue.
Memory requires care. A loss of memory does not prove that the person lacked capacity or did not consent. Again, most people who have consumed alcohol will have had experiences where their memory of all or part of a night out is gone but the evidence suggests they were perfectly capable of functioning. Thus, the court will sometimes have to look at the surrounding evidence to establish what happened even where the complainant cannot provide a complete account.
Does marriage make a difference?
It was the law in England and Wales for a very long time that upon marriage a woman irreversibly consented to sex with her husband and thus a husband could not rape his wife. In this author’s opinion the law on that was always wrong, not just for moral reasons but because its very foundation was based on an extremely poor legal precedent from a law book published years after its authors death in which the author made claims about how the law had been around 60 years before he wrote the book. At least one senior Victorian judge highlighted this problem but the law nonetheless persisted until the case of R v R [1991] UKHL 12.
Since the case of R, there has been no marriage defence to rape and thus, no being married does not make a difference.
Drugging someone can itself be a sexual offence
The law does not deal with drugging solely as evidence relevant to a subsequent rape or sexual assault.
Section 61 of the Sexual Offences Act 2003 creates a separate offence of intentionally administering a substance, or causing someone to take it, knowing that they do not consent and intending to stupefy or overpower them so that any person can engage in sexual activity involving them. The intended sexual activity need not be carried out by the person administering the substance. Sexual Offences Act 2003, section 61
The offence does not require the intended sexual activity actually to occur. The administration of the substance with the required knowledge and intention is sufficient. It carries a maximum sentence of ten years’ imprisonment following conviction in the Crown Court. Where rape is also committed, that is a separate offence carrying a maximum sentence of life imprisonment. Those are statutory maxima, not predictions of the sentence in any particular case.
Why careful examination of the evidence matters
An allegation involving sleep or drugs requires more than a general discussion of consent. It requires examination of the particular act, the complainant’s condition, what the defendant knew and any basis advanced for a reasonable belief in consent.
Messages, recordings, witness accounts, medical evidence and the timing of events may all be significant. Their importance will depend on the issues in dispute. Evidence about an earlier conversation, for example, must be considered in its proper context rather than treated as a substitute for examining what happened on the occasion alleged.
At Chetwode Criminal Defence Solicitors, we advise people facing allegations of rape, sexual assault and other sexual offences. We examine the evidence, explain the applicable law and provide clear advice about the available options, whether the case concerns a disputed allegation or admitted conduct.
Speak to a specialist criminal defence solicitor
If you are under investigation or facing proceedings concerning a sexual offence, early, careful advice can make a significant difference. Contact Chetwode Criminal Defence Solicitors for confidential advice from our specialist criminal defence team.