Can Bob be convicted of raping his wife Alice?

Question

Bob and Alice are apparently happily married for 5 years and have sex nearly every night. Sometimes they are very lucid, others barely awake. Occasionally (perhaps 1 in 10 times) they have some explicit discussions about the timing or other details of their sex, but usually the communication is much more subtle (eg through body language, vague role play or innuendo, gestures or caresses, or facial expressions) or even on one side or another, if not entirely, passive (basically consent is assumed to be present in the absence of expressed/indicated objection).

One day after the last 3 occasions were not so explicitly discussed, Alice complains to police that her husband Bob had raped her the prior night because, she claims, she did not wish to have sex with him that night, and she had not indicated to him that she did so wish to have sex with him.

Importantly, she did also not indicate to him that she didn’t wish to have sex with him, perhaps because she was simply so traumatised and frozen in shock by the fact of presently being allegedly raped, or maybe because she was terrified at what her barbaric and boorish rapist Bob might try to do to her if she tried to protest or resist, or, perhaps, simply because her vocal cords and muscles were simply a bit exhausted and so she simply didn’t fancy voicing or demonstrating her objections because why should she even have to anyway, and only an idiot rapist wouldn’t know that only explicit yes means yes, so she may as well just let him be educated by the judge in court and it just seemed like less effort at the time to let him carry on with it and file a police report in the morning when she had more physical or emotional energy for this kind of confrontation.

How can Alice be legally determined to be either telling the truth as to her mental feeling toward the sex at the relevant time or guilty of “changing her mind afterwards,” and, if she is found to be telling the truth as to her present feeling of opposition to it, can Bob be guilty of any offence?

All and especially a variety of contrastable jurisdictions are welcome, with a special request for England & Wales.

Answer 1

canada

There are no special rules for marriage

There is no special regime for the assessment of sexual assault claims in the context of a marriage.

Your question seems to turn on the consent element of the actus reus. In Canada, consent for the purpose of sexual assault is only the subjective consent by the complainant. "For the purposes of the actus reus 'consent' means that the complainant in her mind wanted the sexual touching to take place" (R. v. Ewanchuk, [1999] 1 SCR 330). There is no such thing as "implied consent" in Canadian law.

There is a defence or "mistaken belief in communicated consent" however. This is available when the defendant: (1) has taken reasonable steps to ascertain consent; and, (2) has the honest belief that the complainant actually communicated consent.

The Supreme Court of Canada has explained (R. v. Barton, 2019 SCC 33):

in seeking to rely on the complainant’s prior sexual activities in support of a defence of honest but mistaken belief in communicated consent, the accused must be able to explain how and why that evidence informed his honest but mistaken belief that she communicated consent to the sexual activity in question at the time it occurred. For example, in some cases, prior sexual activities may establish legitimate expectations about how consent is communicated between the parties, thereby shaping the accused’s perception of communicated consent to the sexual activity in question at the time it occurred. ... great care must be taken not to slip into impermissible propensity reasoning. The accused cannot rest his defence on the false logic that the complainant’s prior sexual activities, by reason of their sexual nature, made her more likely to have consented to the sexual activity in question, and on this basis he believed she consented.

And:

an accused cannot point to his reliance on the complainant’s silence, passivity, or ambiguous conduct as a reasonable step to ascertain consent...

Evidence about Alice's subjective consent

As to how Alice would "be legally determined [by the finder of fact] to be either telling the truth as to her mental feelingg toward the sex at the relevant time", this is a question of ordinary evidence law. See How do you prove a fact at issue in litigation? Evidence would typically come from testimony. The trier of fact (the judge or a jury) then is to weigh all the admissible evidence, including by weighing the witness and party testimony according to its credibility and reliability after testing through cross-examination, to come to a conclusion on the ultimate question(s) at issue.

Some evidence is inadmissible for two particular purposes though. See Criminal Code, s. 276:

evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant (a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (b) is less worthy of belief.

And the trial cannot become a contest of credibility where the finder of fact is simply determining who they believe more. The Crown must prove beyond a reasonable doubt that the complainant did not consent. It is not enough that the finder of fact finds the complainant more credible than the accused. See R. v. S. (W.D.), [1994] 3 S.C.R. 521.

Answer 2

Yes

new-south-wales

A sex act is unlawful if there is no consent. Consent is not complicated. There is no consent if:

• Alice did not consent, and
• Bob knows she didn’t consent.

And of course vice-versa.

The suggested judicial direction is helpful (my emphasis).

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Without the complainant’s consent

This element concerns the complainant’s state of mind. The Crown must prove beyond reasonable doubt that the complainant did not consent [to the act of intercourse].

Everyone has a right to choose whether or not to participate in sexual intercourse. A person cannot presume that another person is consenting. Consensual sexual intercourse involves ongoing and mutual communication and decision-making and free and voluntary agreement between the persons participating in the sexual intercourse. [s 61HF].

However, you should bear in mind that non-consensual activity can occur in many different circumstances and between different kinds of people including people who know one another, or are married to one another, or who are in an established relationship with one another.

A person consents to sexual intercourse if, at the time of the act of intercourse, [she/he] freely and voluntarily agrees to that act of intercourse. [s 61HI(1)] Consent can be given verbally or it can be expressed by actions. However, a person who does not offer physical or verbal resistance to a sexual activity is not, by reason only of that fact, to be taken to consent to the sexual activity. [s 61HI(4)]

A person who consents to a sexual activity with a person on one occasion is not, by reason only of that fact, to be taken to consent to a sexual activity with that person on another occasion. There is evidence the complainant may have consented to [describe sexual activity and occasion] with the accused. If you decide the complainant may have consented to that activity, it does not follow that for that reason only [she/he] consented to the act of intercourse alleged by the Crown. Summarise the evidence and relevant arguments of the parties.]

On the facts you have stated, there is no consent.

• "A person cannot presume that another person is consenting." Bob presumed.
• There was no "ongoing and mutual communication and decision-making and free and voluntary agreement between the persons participating".
• The fact that they are married or in a long-term (or short-term) sexual relationship is irrelevant.
• There was no verbal consent nor consent by action.
• The fact that there was no resistance is irrelevant
• The fact that Alice has consented to sex in similar circumstances in the past is irrelevant.

The Crown would need to prove testimony that these were the facts. This is not an easy thing to do and is the reason why sexual assault conviction rates are appallingly low.

The primary and perhaps only evidence for these facts will be Alice's testimony. Alice's evidence will be tested through cross-examination, and the jury will need to weigh Alice's credibility and decide if the prosecution has met its burden. Basically, does the jury believe Alice?

Bob does not have to testify; if he is wise, he won't. Particularly if he actually thinks "consent is assumed to be present in the absence of expressed/indicated objection" - if he says that shit on the stand he's basically handed the prosecution proof of the next element.

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** The accused knew the complainant did not consent**

This element concerns the accused’s state of mind. The Crown must prove beyond reasonable doubt that the accused knew the complainant did not consent to the act of intercourse alleged.

The Crown has no direct evidence about what the accused’s state of mind was at that time. The Crown asks you to infer or conclude that the accused knew the complainant was not consenting on the basis of the facts and circumstances which it has sought to prove occurred.

[Give direction as to Inferences [see [3-150] or remind jury if already given.]

For the purpose of deciding whether the Crown has proved this element, you must consider all the circumstances of the case, including what, if anything, the accused said or did: [s 61HK(5)(a)].

The Crown will have proved the accused knew the complainant did not consent if it proves that [refer only to those of the following that arise from the evidence]:

1. the accused actually knew the complainant did not consent to the act of intercourse; or

2. the accused was reckless as to whether the complainant consented to the act of intercourse; or

3. any belief the accused had, or may have had, that the complainant consented to the act of intercourse was not reasonable in the circumstances.

It is important to bear in mind that it is for the Crown to prove this. As you are well aware, there is no obligation upon the accused to prove anything.

On the facts stated Bob did not know that Alice consented - because she didn't.

Alice and Bob's mutual attitude that "consent is assumed to be present in the absence of expressed/indicated objection" is at the least, unreasonable and may well be reckless. The Crown would love to get that before the jury - it basically proves that Bob's belief in Alice's consent was unreasonable. It will be far more useful coming from Bob than from Alice - they need to show that this is Bob's position because Alice is not on trial. Yet, but if she keeps thinking that's how consent works, it's only a matter of time before she is.