Criminal: Sexual Offences Flashcards
What are the Sexual Offences?
Rape, Rape under s.4, Sexual Assault, Sexual offences against children, sexual offences against protected and relevant persons, and incest
What is the Actus Reus of Rape?
Sexual intercourse with a [female person] who at the time of the intercourse does not consent to it
What is the Mens Rea of Rape?
Either (i) knowing that the female person was not consenting to sexual intercourse or (ii) being reckless as to whether she was so consenting.
What is the Morgan Principle?
The more unreasonable a belief is, the less likely it is honestly held. From DPP v. Morgan [1976], where HoL held that an honest belief in consent is sufficient to negative the mens rea of rape, even if such belief is unreasonable. However, HoL were satisfied that, on the facts, the accused could not have honestly believed that their victim was consenting.
What are the 3 Sexual Assault Offences?
Sexual Assault, Aggaravated Sexual Assault, and Rape under s. 4
What must the prosecution prove for a sexual assault conviction?
(i) the accused assaulted the complainant;
(ii) the assault was sexual in nature or accompanied by circumstances of indecency; and
(iii) the accused intended the assault to be sexual or indecent.
Does the accused need to be motivated by sexual gratification to be convicted of SA?
No. (DPP) v. FN (a minor) [2022] approved R v. Bernier [1998] confirming that sexual assault does not require proof that the accused was motivated by sexual desire.
What is Rape under s. 4?
A sexual assault that includes: (i) the penetration (however slight) of an anus or a mouth by a penis; or
(ii) the penetration (however slight) of a vagina by any object held or manipulated by another person.
What does not constitute Rape under s. 4?
(i) the digital penetration of a vagina.
(ii) the digital penetration of an anus.
(iii) the penetration of an anus with an object.
What is “Aggravated” SA?
A sexual assault is aggravated if it (i) involves the use or threat of serious violence or (ii) is such as to cause injury, humiliation, or degradation of a grave nature to the person assaulted
What effect does s 14 of the Criminal Law Amendment Act 1935 have as regards consent?
It shall not be a defence to a charge of [sexual] assault upon a person under the age of fifteen years to prove that such person consented to the act alleged to constitute such [sexual] assault.
What factors can undermine consent? How?
Capacity, advance consent, force, threats, fraud
What is Murray J’s dictum with regard to consent from DPP v. C [2001]?
“Knowledge or understanding of facts material to the act being consented to is necessary for the consent to be voluntary or constitute acquiescence.”
What are the “tiers” of defilement of a child?
Child under 15YOA, Child under 17YOA (partial consent defence), Child 17<x<18.
What is incest?
Any male person who has carnal knowledge of a female person, who is to his knowledge his grand-daughter, daughter, sister or mother, shall be guilty of an offence, and any female person consenting to intercourse with such a relation.
What is engaging in Sexual Acts with Protected or Relevant Persons?
“Sexual acts” with a “protected” (lacks the capacity to consent) or “relevant” (mental inability to guard against exploitation). “Person in authority” (any person who as part of a contract of service or a contract for services is, for the time being, responsible for the education, supervision, training, treatment, care or welfare of the relevant person)
What is unique about the definition of “sexual act” with respect to children?
Unlike the definition of “sexual act” in s 9(6) of the 1990 Act, this definition does not include “an act which if done without consent would constitute a sexual assault”. Therefore, any non-consensual act that would be only sexual assault isn’t a “sexual act” for the purposes of the 2006 Act
