Rape Flashcards
Ar - penetration s79(2)
‘Continuing act from entry to withdrawal’ - act becomes illegal even when intercourse is happening and then consent from the victim is revoked - this is similar to the old law, however is broader to include other things, particularly gender reassignment surgery and oral penetration
- anus penetration was covered by the criminal justice and order act 1994
Sexual offences act 2003 s1(1)
A person commits an offence if
a) he intentionally penetrates the vagina, anus or mouth of another person
b) B doesn’t consent to the penetration
c) a doesn’t reasonably believe that b consents to the penetration
Consent
The old law had little guidance on what consent meant the jury had discretion to decide whether consent was present based on ‘good sense, experience and knowledge of human nature and modern behaviour’ OLUGBOJA [1982] QB 320
Approaches to consent SOA 2003
Modern approaches ie.
S76 & s75 the prosecution have to prove circumstances rather than a lack of consent
If there is no conclusive evidence based on these two types of presumptions then s74 will be applied
S75 evidential presumption
A) there’s been violence towards A or A fears violence
b) there has been violence towards a 3rd party or where A fears violence towards a 3rd party
c) A is unlawfully detained but D isn’t
d) v was asleep or otherwise unconscious
e) Vs physical disability effected the communication of consent
f) a substance had been administered to A which has, or could overpower or stupify him
S76 conclusive presumption
Situations where there has been:
A) deception as to the nature or quality of the act
B) impersonation of another
S74 - no presumptions
All circumstances that are not covered by s75 and 76
- situations where the evidential presumption in s75 has been rebutted
“ a person consents if they agree by choice and has the freedom and capacity to make that choice “
R v Jheeta [2007] EWCA 1699
Case where D met V at college and began a consentual relationship whereby over the course of 4 years the v wanted to break up with him, she was receiving threatening messages from who was D (she didn’t know this) and he reported it to the police on her behalf, then she was getting texts from PC Ken, Bob and Martin who did actually work on her case but it was D sending the messages and said that she should do her duty and have sex with her boyfriend otherwise she would be arrested and fined. It was held that she was not deceived into having sexual intercourse under the nature and quality of the act, but rather was having sex under circs where she wouldn’t have normally done so (nature of where she found herself) as a result of the ‘complicated and unpleasant scheme’ d had planned. So rape conviction was upheld.
Mr - belief in consent
Under previous law d could avoid liability for rape if he honestly held a mistaken belief of consent even if it was unreasonable
SOA 2003
S1(2) whether a belief is reasonable is to be determined as having regard to all the circs including any steps d has taken to ascertain whether v consents
When V is intoxicated
It becomes very problematic regarding consent when v is extremely intoxicated because it affects
- whether they are able to give consent (AR)
- whether the intoxication affects whether D thought they had given consent or not
Bree [2008] QB 131
Proper construction of s74 was that if through drink of any other reason GHD complainant had temporarily lost their ability to have the capacity to consent to having intercourse or not, she wouldn’t be consenting. However if by being extremely intoxicating yet having the capacity and ability to consent, then the offence of rape will fail
Intention
Penetration of the vagina anus of mouth by the d must be intentional. Cannot be reckless, mirrors the old law
- additional men’s rea requirement in relation to the conclusion and evidential presumptions means wider branches for the men’s rea of rape
