Rape Flashcards
S v HMA 1989
changed the law the appellant was charged among other things, of raping his wife. In his appeal, he claims that based on comment of Hume that a man could not be found guilty of raping his wife within marriage, on the presumption that the weddings of bells gave carte balnche consent to the man to have sex with his wife, on these grounds that the conviction was invalid. The court said that times have changed and these word of Hume were no longer valid.
Lord Advocate’s Reference (No 1 of 2001) 2002 SLT 466
changed the law in Scotland. It was made after student was acquitted of rape through lack of evidence that force had been used to overcome the woman's will. The LA refereed the case to the HCJ where the court decided by majority (5:2) that prior decisions which stipulated 'force' as a requirement of the AR were to be overruled. MR on the part of the men was present 'where he knew that the women was not consenting or was at any rate reckless as to whether she was consenting, reckless as the law currently stood being understood in the subjective sense' [476] LA Reference (No 1 of 2001) AR rape: 'having sexual intercourse with a women without her consent'
HMA v Sweenie 1858
victim asleep, overruled by LA referene
McKearney v HMA 2004
Rape former girlfriend, 4 hours , threatened to kill her, not resisted penetration - frightened, appeal allowed .clarified MR of man statement. The directions in this case had erroneously suggested to the jury that all that had been required for rape to be proved beyond reasonable doubt was that the woman had been subjected to sexual intercourse without her consent [34] It focused on the MR was element of the crime holding that MR (intention/recklessness) was subject to the caveat that if the accused honestly and genuinely but mistakenly believed that the women was consenting he must be acquitted Jamieson v HMA 1994, further opined that the onus was firmly on the prosecutor to show absence of ‘consent’. the court then re-affirmed LA reference by stating the Crown had to prove (1)Penetration (2) that woman did not consent (3) the accused knew she did not consent.
Jamieson v HM Advocate 1994
rape- defence that there was a consent, he had believed that, appeal (misdirection), appeal allowed conviction quashed;is a notable legal case which established a precedent in Scotland which held that a man does not commit rape where he honestly, albeit unreasonably, believes his victim is consenting. This was a criminal case decided by the High Court of Justiciary sitting as the Court of Criminal Appeal.
Meek v HMA 1983
six youths were charged with rape. At the trial, the judge refused to direct thejury that if they considered that any of the accused honestly believed that thegirl was consenting to intercourse, whether or not there were reasonable grounds for that belief, they were not entitled to convict that accused of rape.The jury convicted three of the youths, who appealed inter alia on the groundthat there had been a miscarriage of justice in respect that the judge had refused to give the direction sought.oSix boys had sex with a drunk girl in a field after a party. Three were acquitted however three were found guilty because the juries at their trials could not see any way in which the girl would have consented to having sexual intercourse with six men at once. Lord Justice-General Emslie [281]
Sexual Offences (Scotland) Act 2009
s 1 Rape; s1(2) penetration; s12 consent
Kidd v MacLeod 2012
the accused pled guilty to a breach of s 7 of the sexual offences (S) Act 200 , the ‘ sexual verbal communication’ he threatened to rape the two complainers
