Rape Flashcards
What is the statutory provision governing the offence of rape?
s.1 (1) Sexual Offences Act 2003
s.1(1) SOA 2003- KEY POINTS
intentionally penetrates the vagina, anus or mouth of another person with his penis
no consent and no reasonable believe of consent
AR of Rape
Penetration of V,A,M + absence of consent
MR of Rape
Intention + no reasonable belief in consent
the ‘continuing act’ theory- case law- police officer’s foot
Fagan v MPC [1969]
PENETRATION IS A CONTINUING ACT- STATUTE + case law
s.79 (2)- Kaitamaki [1985]- if consent is given, then withdrawn and penetration continues that’s also rape!
Rape can also give rise to accomplice liability- statute+ case law
ss.44 to 46 Serious Crime Act 2007 + DPP v K and B [1997]
Rape within marriage- case law- clue fairly recent. Amended statute.
R v R [1991] + s.142 Criminal Justice and Public Order Act 1994
DPP v Morgan- old test v new test- describe
Old test was purely subjective; test under SOA 2003 is both S and O- honest belief and reasonable belief
Why is the case of B [2013] relevant as to reasonableness of D’s belief of consent?
delusional beliefs are still classed as irrational
What if a belief in consent was honest and reasonable?- think: MR not satisfied
This serves as a defence to a rape charge
Essay Question: Reform on Rape. What bill did not pass? clue: defences
Rape (Defences) Bill 2008- sought to prohibit the use of sleepwalking as a defence to rape- Failed
What are the 3 elements of valid consent?
FREEDOM, CHOICE, CAPACITY- S.74
What is s.76 about? Give example with case law where it is applied successfully- remember 2 subsections
irrebuttable presumptions- D is guilty if circumstances are met
Flattery [1877]- deceive C about nature/purpose of act- sex= surgical operation
Elbekkay [1995]- impersonating ppl known to C- pretended to be her BF
What is s.75 and why is it different to s.76?
Rebuttable presumptions. asume C didn’t consent, but D can call evidence to disprove, unlike s.76 where conviction arises regardless
Violence is a condition under s.75. Why may this be problematic?
C may have wished sado-masochistic sex. Also the term violence is not defined in the SOA 2003.
In relation to consent (and subsequent payment for sex), why is the case of Linekar [1995] significant?
C was a prostitute, who agreed to have sex with D, in return for £25. D did not pay. NO RAPE. C provided consent for the act, regardless of the payment.
Deception and consent. Give examples of scenarios where deception vitiated consent.- problematic area of law
Assange v Swedish Prosecution Authority [2011] - condom (no s.76, but s.74)
R (F) v DPP [2013]- ejaculation in vagina
McNally [2013]- false gender
What circumstances are ‘too broadly related to consent’ to have the capacity to vitiate it?
B [2006]- failed to disclose HIV. Not a rapist but s.20 GBH
R v Lawrance- lied that he had a vasectomy. Court distinguished physical barriers in Assange/ R (F) to be more closely connected
If in Fear cannot give valid consent. clue: submission
R v Olugboja [1982]
no consent if intoxicated
Bree [2007]; Malone [1998]
no consent if asleep
Larter and Casleton [1995]
what are the 4 arguably grey areas of consent?
submission- R v Doyle;
non-disclosure- R v Konzani; Re EB; R v McNally
lies/deception- R v Lawrance;
intoxication- R v Lang; R v Bree; R v Kamki
