• In the case of R v Kirk [2008] EWCA Crim 434, it was held that sexual favours in exchange for something such as money or something required by the desperate/vulnerable person can constitute as done without their consent.

Facts of R v Kirk [2008] EWCA Crim 434

  • The V, a minor, was offered £3.25 by the D in exchange for sex
  • V was (at the time) vulnerable: not only was she underaged, she also did not have shelter nor anything to eat
  • V agreed to this, and the 14-year-old used that money to buy food
  • The D was convicted of rape
  • He appealed on the basis that the judge was incorrect in his direction to the jury where he distinguished between consent and submission as well as applying it to the facts: ‘Did she agree to have sex, or did she just submit to get £3.25?’

Issues in R v Kirk [2008] EWCA Crim 434

  • Was the judge incorrect in his direction to the jury?
  • Should the term ‘willing submission’ be used?

Held by the Court of Appeal

Appeal dismissed – the judge had not misdirected the jury.

Lord Justice Pill

“no injustice has been done by the procedure followed” [44]

Willing submission [92]:

  • “The expression “willing submission” is not an easy one in this context. Willingness is usually associated with consent. However, we are satisfied that the jury would not, in the context of this very full direction, have been misled by the use of the word “willing”.”
  • “It was willing in the sense that there was no attempt at physical resistance by the Complainant and the judge used it in that sense. That leaves open the possibility that the circumstances were such that the Complainant submitted to sexual intercourse rather than consented to it.”
  • “It is not, however, an expression we would commend for use on other occasions.”

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