Rape Flashcards
Which extract of legislation covers a victim of a sexual offence’s right to anonymity?
Section 5 The Sexual Offences (Amendment) Act 1992
How long does the anonymity granted via Section 5 The Sexual Offences (Amendment) Act 1992 last?
For ever
If anonymity granted under Section 5 of the Sexual Offences (Amendment) Act is breached, what is the consequence?
The breach is considered an offence
Which extract of legislation covers consent in relation to sexual activity?
The Sexual Offences Act 2003
What is consent pivotal to determining with respect to sexual activity?
Whether the sexual activity is lawful
When is consent deemed to be present?
When a individual agrees by choice AND
They have the freedom to choose to consent AND
They have the capacity - mental and physical - to choose
If a person consents to sexual activity when sober, then, later, becomes so drunk they cannot reasonably consent at that time, would they still be deemed to have consented?
No - they no longer have the capacity to consent and the circumstances are significantly changed such that previous expressions of consent are deemed inapplicable
Under what age is an individual deemed to lack the capacity to consent?
Under 13 years - any activity with a child is ALWAYS rape therefore
Under what age is an individual deemed to lack the capacity to give true consent?
Under 16 years
Is there any available defence to a conviction of rape with regard to a child under 16 years?
Possibly - a defence may be available ONLY if the defendant had the HONESTLY HELD BELIEF that the child was 16 or over (and adult and able to consent)
For individuals below the age of 16 engaging in sexual activity together, would a charge be applied?
No
What question should you ask yourself in respect of considering whether a sexual act may constitute rape?
Ask if the people involved had CAPACITY, FREEDOM and CHOICE in the situation
What should be determined with regard to any suspect when considering a charge of rape?
Whether they took any steps to gauge consent of the other person before engaging in sexual activity
With respect to a charge of rape, what is the first evidential presumption which would cause a person to be presumed incapable of consenting?
If anybody uses violence or causes the victim to fear violence before or during the sexual act
With respect to a charge of rape, what is the second evidential presumption which would cause a person to be presumed incapable of consenting?
If somebody uses violence toward another person besides the victim, or causes them to fear violence
With respect to a charge of rape, what is the third evidential presumption which would cause a person to be presumed incapable of consenting?
The victim was unlawfully detained and the defendant was not so detained
With respect to a charge of rape, what is the fourth evidential presumption which would cause a person to be presumed incapable of consenting?
The victim was asleep or unconscious at the time of the act
With respect to a charge of rape, what is the fifth evidential presumption which would cause a person to be presumed incapable of consenting?
If, due to physical disability, the victim was unable to communicate consent
With respect to a charge of rape, what is the sixth evidential presumption which would cause a person to be presumed incapable of consenting?
The victim was overpowered by some substance(s)
If any of the evidential presumptions for inability to consent hold true in respect of a charge of rape, what bearing does this have on the trial?
The burden of proof is then placed on the defence to prove innocence
With respect to a charge of rape, what is the first conclusive presumption which would cause a person to be presumed incapable of consenting?
Where the suspect intentionally deceived the victim as to the nature or purpose of the sexual act
With respect to a charge of rape, what is the second conclusive presumption which would cause a person to be presumed incapable of consenting?
The suspect intentionally impersonated somebody whom the victim knows, causing them to thing they were having intercourse with this person
If any of the conclusive presumptions for inability to consent hold true in respect of a charge of rape, what bearing does this have on the trial?
The victim is presumed not to have consent and the burden of proof is then placed on the defence to prove innocence
Is the presence of sexual disease deemed relevant to consent by the Court of Appeal in respect of sexual offences?
Generally no UNLESS the accused dishonestly states they do NOT have an STD when asked and consent follows from this
How is Rape triable?
On indictment, in Crown Court
What is the definition of Rape?
A is guilty if he intentionally penetrates the vagina, anus or mouth with his penis (VAMP) AND
B doesn’t consent to penetration AND
A doesn’t reasonably believe B consented
What is the acronym to remember the key elements of the Actus Reus for Rape?
V agina
A nus
M outh
P enetrated with penis intentionally
What is the Mens Rea for Rape (2 elements)?
The intentional penetration of VAMP is done
1) Without consent
2) The suspect does not reasonably believe the victim consented
What must the character of penetration be for a legitimate charge of Rape?
It must be intentional, not accidental
What is the definition of “penetration”?
Penetration is a continuing act from entry to withdrawal
Can transgendered individuals be deemed victims of Rape?
Yes
