Consent from the cps:
"Reasonable belief in consent
In the offences of rape, assault by penetration, sexual assault and causing a person to engage in sexual activity without consent, a person (A) is guilty of an offence if (s)he:
Acts intentionally;
(B) does not consent to the act; and
(A) does not reasonably believe that B consents.
Deciding whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents (subsection (2) of sections 1-4). It is likely that this will include a defendant's attributes, such as disability or extreme youth, but not if (s)he has any particular fetishes.
This is a major change in the law and the Act abolishes the Morgan defence of a genuine though unreasonably mistaken belief as to the consent of the complainant. It means that the defendant (A) has the responsibility to ensure that (B) consents to the sexual activity at the time in question. It will be important for the police to ask the offender in interview what steps (s)he took to satisfy him or herself that the complainant consented in order to show his or her state of mind at the time.
The test of reasonable belief is a subjective test with an objective element. The best way of dealing with this issue is to ask two questions:
(i) Did the defendant believe the complainant consented? This relates to his or her personal capacity to evaluate consent (the subjective element of the test).
(ii) If so, did the defendant reasonably believe it? It will be for the jury to decide if his or her belief was reasonable (the objective element).
Evidential presumptions (section 75)
If the defendant did the relevant act, as defined in section 77 (the sexual activity within sections 1-4), and the circumstances specified in subsection (2) exist and the defendant knew they existed, then the complainant is to be taken not to have consented. These circumstances are:
(a) Any person used/threatened violence against the complainant at the time of the act or immediately before the first sexual activity began;
(b) Any person caused the complainant to fear at the time of the act or immediately before the first sexual act, that violence was being used/would be used immediately against another person;
(c) The complainant was, and the defendant was not, unlawfully detained at the time;
(d) The complainant was asleep or otherwise unconscious at the time;
(e) The complainant was unable to communicate consent to the defendant because of their physical disability e.g. where a complainant is unable to communicate verbally or to nod or shake their head.
(f) Any person administers or causes the complainant to take a substance, without the complainant's consent, which was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.
Evidential presumptions - key points:
The defendant has to know that one of the circumstances existed;
The requirement only is that any one circumstance needs to be proved, even though there may be more than one circumstance that existed;
The threat of/actual violence in (a) and (b) need not come from the defendant;
The element in (a) and (b) is one of immediate violence. This is not defined but the courts may define it in a similar way as under the Public Order Act 1986 i.e. not meaning instantaneous violence, but only a relatively short time interval between the act which is threatening and the violence R v Horseferry Road Magistrates' Court ex p. Siadatan [1991] 1 QB 280.
If any one of the presumptions is proved, then the complainant is deemed not to have consented. The Act imposes an evidential burden on the defendant to adduce sufficient evidence to raise an issue that the complainant consented and whether or not the defendant reasonably believed the complainant consented. The question whether the defendant adduces sufficient evidence to raise an issue to be left to a jury is a matter for the judge. The issue should be left to a jury where the evidence, if accepted, raises a prima facie case. Once the defendant has done this, it will be for the prosecution to prove beyond a reasonable doubt, that the complainant did not consent and that the defendant did not reasonably believe the complainant consented."