HMA v GW 2019GW has had his appeal against conviction rejected after being accused of raping a woman while she was asleep.
The High Court made clear that the legislation is very clear that a person who is asleep or unconscious cannot consent in advance of sex taking place. GW had lodged a special defence of consent prior to the trial stating he had sex with the complainer with her consent. The preliminary hearing court was told that it was “the practice of the parties… that on occasion the appellant would waken the complainer… by penetrating, or attempting to penetrate her vagina with his penis” and that the complainer “consented to being awoken in this way”. However, the preliminary hearing Judge refused to allow the complainer to be questioned about this.
The defence argued that this consent was a continuing feature throughout the relationship and therefore he did not rape the complainer. The appellant argued that there was a “distinction” between the protections which the law offered someone who was in a continuing relationship. The appeal court made clear this is not the position. Overall the Appeal Judges ruled that “a sleeping person is not capable of consenting” under any circumstances. In concluding the appeal, Lord Justice General said: “consent must be given at the time, sexual conduct which occurs when the person is in that state is criminal. It cannot be consented to at a remote point in advance.”