Rape Flashcards
where does law for rape come from
Sexual Offences Act 2003
what is s.1(1) SOA 2003
s.1(1); a person(A) ommits offence if D -
(a) intentionally penetrates vagina/anus/mouth of another (B) with his penis
(b) B doesnt consent to penetration
(c) A doesnt reasonably believe B consents
what is s.1(2) SOA 2003
s.1(2); whether belief in consent is reasonable is determined in regard to all the circs, including any steps A has taken to ascertain whether B consents
what is the AR of rape
D penetrates B’s vagina/anus/mouth (conduct) +
B doesnt consent (circumstance)
what are the conduct elements of rape
AR; D penetrates B’s vagina/anus/mouth
MR;intention to penetrate
what are the circumstance elements of rape
AR; B doesnt consent
MR; D lacks a reasonable belief in consent
MR of rape
intention to penetrate (conduct)+
D lacks reasonable belief in consent(circumstance)
who can commit rape
men only
where is force to penetrate covered
s.2 + s.4 SOA 2003
what happened/ is the legal principle in R v R (1991)
marital rape
what is s.79(2) SOA 2003
penetration = continuing act from entry-withdrawal
what cases support s.79(2) (penetration as a continuing act)
-R v Kaitamaki; D realised after penetration that V wasnt consenting but continued, moment consent was revoked he satisfied AR for rape
-R v Leaver; confirms old law
what happened/ was the legal principle in R v Kaitamaki
-D realised after penetration that V wasnt consenting but continued
-moment consent was withdrawn he satisfied AR for rape
-conf in R v Leaver
what is s.79(9) SOA 2003 and give the case that supports it
-‘vagina’ includes vulva
-R v F (2002); gave broad definition to vulva
what is s.79(3) SOA 2003
-references to part of body surgically constructed (gender reassignment)
what are the 3 ways V’s non consent is determined
-s.76 Conclusive presumptions about non consent (cannot be rebutted by D)
-s.75 evidential presumptions about non consent (can be rebutted by D)
-s.74 general definition of consent
what is s.76(1) SOA 2003
-s.76(1); if proven D did relevant act + any of the circs specified in subsection (2) existed it is conclusively presumed:
(a)V did not consent to relevant act
(b)D didnt believe V consented to act
what are the circs in s.76(2) SOA 2003
(a) D intentionally deceived complainant as to nature or purpose of the relevant act or
(b)D intentionally induced the complainant to consent to relevant act by impersonating a person personally known to the complainant
what is s.76(2)(a) and the cases that support it
-s.76(2)(a); deception of nature/ purpose of act
-R v Williams; open air passage to improve singing
-R v Flattery; surgical operation
what happened / is the legal principle of R v Williams
-D said he was opening air passage to improve V’s singing
-V deceived as to nature/purpose of act
give 5 cases + legal principles about s.76(2)(a)
-R v Williams; help singing
-R v Flattery; operation
-Assange v Swedish Prosecution Authority; sex without condom is same in nature as sex with condom
-R v Lineker; D didnt pay prostitute, V not deceived by nature
-R v Devonald; 16yo exposed himself online to 20yo woman who was actually ex-gf’s dad, s.76 applied
what happened/ is the legal principle in Assange v Swedish Prosecution Authority
-sex without condom is the same in nature as with condom
what happened/ is the legal principle in R v Lineker
-D didnt pay prostitute
-ct said not rape as not deceived in nature
what happened/ is the legal principle in R v Devonald
-16yo exposed himself online to ‘20yo woman’ who was his ex-gf’s dad
-s.76 applied
what is s.76(2)(b) and the cases that support it
-impersonation
-R v Elbekkay; V assumed D was her husband when he got in bed and had sex
what is s.75(1)
-evidential presumptions
-(a) did relevant act
(b) did any circs specified in subsection (2) and
(c) D knew those circs existed
UNLESS there is sufficient evidence to raise issue as to whether V consented or whether D reasonably believed it
what are the 6 circs for evidential presumptions outlined in s.75(2)
(a)threats of violence
(b)threats to 3rd parties
(c)unlawful detention
(d)sleep and unconsciousness
(e)physical disability
(f) drug assisted
explain s.75(2)(a) + (b) threats of violence (evidential presumptions)
-threats need not emulate from D
-must be at time of act or immediatley before it
what cases support s.75(2)(a) + (b) evidential presumptions
-R v Dagnall; police intervened before D raped V, no penetration but V sufficiently convinced she would be raped
-R v Brown; sadomasochistic gays + consent is no defence to ABH/GBH
explain s.75(2)(c) unlawful detention and the cases that support it
R v David T (2005); D kidnapped former lover; rape
explain s.75(2)(d) unconsciousness + sleep and the cases involved
-R v Larker; D had sex with 14yo who was asleep; rape
-R v Cooper(2009); Lady Hale said “One does not consent to sex in general. One consents to this act of sex with this person at this time with this place”
what happened/ is the legal principle in R v Dagnall
-police intervened before D raped V, no penetration but V sufficiently convinced she would be raped
what happened / is the legal principle in R v Brown
-sadomasochistic gays + consent is no defence to ABH/GB
what happened/ is the legal principle in R v David T(2009)
-D kidnapped former lover; rape
what happened/ is the legal principle in R v Larker
R v Larker; D had sex with 14yo who was asleep; rape
what happened/ is the principle in R v Cooper (2009)
-Lady Hale said “One does not consent to sex in general. One consents to this act of sex with this person at this time with this place”
explain s.75(2)(e) physical disability for evidential presumptions
-no consent if physical disability means inability to communicate consent
explain s.75(2)(f) drug assisted and the cases involved in evidential presumptions
-causing V to take, without consent, a substance capable of enabling V to be stupefied or overpowered
-D can use force or deceive V into self-administration
-R v Bree(2007); despite intoxication + fading consciousness D not conv of rape
what happened / is the legal principle in R v Bree(2007)
-despite intoxication and fading consciousness D not convicted of rape
what 3 cases/ legal principles say what happens when an evidential presumption is rebutted
-Baroness Scotland (Government Minister): Home Affairs Committee 5th Report 2022; if judge is satisfied there is sufficient evidence to justify putting the issue of consent to the jury, the issues have to be proved by the prosecution in the normal way
-R v Zhang(2007); trial judge determines if evidence is sufficient to rebut presumption, if there is, go to s.74
what happened/ is the legal principle in Baroness Scotland (Government Minister): Home Affairs Committee 5th Report 2022
- if judge is satisfied there is sufficient evidence to justify putting the issue of consent to the jury, the issues have to be proved by the prosecution in the normal way
what happened/ is the legal principle in
R v Zhang(2007)
-trial judge determines if evidence is sufficient to rebut presumption, if there is, go to s.74
-case of sleep/unconsciousness s.75(2)(d)
-D argued judge elevated s.75 evidential presumption to a s.76 conclusive presumption by directing jury to find C did not reasonably consent if unconscious
-conv upheld
what is the general definition of consent in s.74 SOA 2003
-V consents if they agree by choice and has the freedom and capacity to make that choice (whether there is consent is for jury to decide)
give 6 legal principles/ cases regarding freedom to choose (s.74 gen def consent)
-no violence/ physical pressures/ coercion
-R v Wellard; kidnapping
-R v Olugboja; submission is not consent
-R v Kirk; jury must draw distinction between ‘willing submission’ and real consent
-R v Doyle; V’s response to intercourse must be physically enthusiastic
-R v Ali; no true consent where vulnerable/immature individual is groomed
what happened/ is the legal principles in R v Wellard and R v Olugboja
-R v Wellard; kidnapping negates freedom to choose
-R v Olugboja; submission is not consent
what happened/ is the legal principle in R v Kirk
-jury must draw distinction between ‘willing submission’ and consent
what happened/ is the legal principle of R v Doyle
-V’s response to intercourse must be physically enthusiastic
what happened/ is the legal principle in R v Ali
-no true consent where vulnerable / immature individual is groomed
give 6 legal principles / cases regarding deception and freedom (s.74 gen def consent)
-R v B(2006); failure to disclose HIV status is not rape
-Assange v Swdish Prosecution Authority; lying about condom can only viiate sex if V made clear sex was conditional on D wearing it
-R (on the applicant of F) v DPP; V deprived of choice when D claimed he couldnt ejaculate inside her and did
-R v McNally; V deceived believing D was male
-R(on app of Monica) v DPP; sex w/ undercover cop not rape as not closely connected to performance of relevant act/ amount to impersonation
-R v Lawrence; lies about fertility not sufficient to deprive V of capacity/freedom to choose
what happened / is the legal principle in R v B (2006)
-failure to disclose HIV status is not rape
-Q is did V consent to sexual act NOT did V consent to sexual act with HIV pos person
what happened / is the legal principle in Assange v Swedish Prosecution Authority
-lying about wearing condom can vitiate consent IF V made it clear that sex was conditional on the D wearing a condom
what happened / is the legal principle in R (on the applicant of F) v DPP
-V deprived of choice when D claimed he wouldnt enjaculate inside her but did
what happened / is the legal principle in R v McNally
-V deceived into believing D was male
-V deprived of choice to have sex with a man
what happened / is the legal principle in R (on the application of Monica) v DPP
-V had sex with undercover cop
-didnt vitiate consent for the purposes of sexual offences unless it was closelt connected to performance of relevant act or amount to impersonation
what are the legal principles and cases involved with capacity to choose/ voluntary intoxication (s.74 gen def consent)
-R v Bree(2007); drunken consent = consent
-R v H(2007); V not remembering verbal consent doesnt preclude the jury finding absence of consent
what happened / is the legal principle in R v Bree
-drunken consent = consent
what happened / is the legal principle in R v H (2007)
-V not remembering verbal consent doesnt preclude jury finding absence of consent
what is the case involved with capacity to consent (s.74 gen def consent)
-R v Kamki; D had sex with very drunk V who was initially asleep
what 8 factors(??) came from R v Kamki
(a)V consents if they agree by choice+ has freedom /capacity to make that choice
(b)no freedom/capacity to choose when unconscious
(c)where a person has some degree of consciousness further consideration must be applied
(d)drunk ppl can consent
(e)alcohol affects choice/inhibitions
(f)temp loss of capacity to consent isnt consent
(g)consider degree of capacity
(i) if V did have capacity, did they actually consent
where is reasonable belief in consent (circ element of MR) considered
-dealt with via conclusive or rebuttable presumptions (s.76/75)
-objective test whether D’s belief as to consent was a reasonable belief
?????????/
(1)knows or intends that Vdoes not consent
(2)was reckless or gives no thought to whether V consented
(3) he otherwise does not reasonably believe that V consents (covers honest but reasonable belief in consent)
