Rape Flashcards
What are Sections 1-4 of the Sexual Offences Act 2003?
Rape (s 1)
Assault by penetration (s 2)
Sexual assault (s 3)
Causing another person to engage in sexual activity without consent (s 4)
Offence of Rape
s1 Sexual Offences Act 2003
(1) A person (A) commits an offence if—
(a) He intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
Penalty:
- Indictment– Life Imprisonment
Does the offence of rape protect transsexuals?
Yes, references to a part of the body include those which have been surgically constructed.
What is the definition of ‘consent’?
s74 Sexual Offences Act 2003
For the purpose of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.
Must be true consent- cannot be gained through fear or threats. Not having freedom and capacity may be something like a person with a mental disability, so its not true consent.
Consent: situations with a person who is HIV positive and is aware of his condition…
- If the accused makes no mention of his condition this will NOT be rape. However, it may constitute an offence under the Offences Against the Person Act 1861 (s18/20)
- If the accused positively assures the complainant that he is not HIV positive (lied) this WOULD constitute rape.
Conditional consent
In some cases when considering consent under s74, consent was considered not to be true consent, either because of a condition upon which consent was given was not complied with or because of a material deception.
What three sets of circumstances exist which may vitiate consent where the condition is breached?
- Assange v Sweden: not wearing a condom when this was part of the consent.
- R(F) v DPP: ejaculation intentional/accidental - the former vitiating consent and the latter not.
- McNally v R: Deception can vitiate V’s consent if it removes their freedom of choice, in this case, lying about being a malewhen actually female. Deception about something like wealth (saying they’re rich and they turn out not to be), etc. is insufficient.
Sections 75 and 76 of the Sexual Offences Act 2003 allow presumptions to be made in relation to the absence of consent. They apply to offences under:
Rape (s 1)
Assault by penetration (s 2)
Sexual assault (s 3)
Causing another person to engage in sexual activity without consent (s 4)
What are evidential presumptions about consent?
s75 Sexual Offences Act 2003
Basically, that circumstances themselves show that the victim did not consent, e.g a victim who is asleep cannot verbalise their refusal that they do not consent.
If the defendant did the relevant act, as defined in section 77 (the sexual activity within sections 1-4), and the circumstances specified in subsection (2) exist and the defendant knew they existed, then the complainant is to be taken not to have consented.
Up to the defendant to prove the victim consented.
Evidential presumptions
(2) The circumstances are that—
s75 Sexual Offences Act 2003
(a) Any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him;
(b) Any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person;
(c) The complainant was, and the defendant was not, unlawfully detained at the time of the relevant act;
(d) The complainant was asleep or otherwise unconscious at the time of the relevant act;
(e) Because of the complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented;
(f) Any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.
What are conclusive presumptions about consent?
s76 Sexual Offences Act 2003
(1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed—
(a) That the complainant did not consent to the relevant act, and
(b) That the defendant did not believe that the complainant consented to the relevant act.
(2) The circumstances are that—
(a) The defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
(b) The defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.
It is important to emphasise the fact that s76 deals with situations where the defendant either:
- Deceives the victim regarding the nature and purpose of the act.
- Induces the victim to consent to the relevant act by impersonating a person known personally to the complainant.
Question: Lisa meets Jill and they start a relationship. Lisa enjoys watching Jill masturbate in online private videos. Jill consents as only Lisa is watching it. Lisa, however, gives her login to her friend Sally (who she is having an affair with). Sally regularly logs on and gets Jill to perform a sexual act, pretending she is Lisa.
What do you understand about the above scenario when it comes to consent?
s76 Sexual Offences Act 2003
Two parts:
Impersonation – As in our example, the consent given was for partner Lisa only. Sally is impersonating Lisa and therefore had Jill realised that she was performing acts for another person, she would not have consented.
Deception – Pretending to undertake an act for a different reason (pretending to be a proctologist but instead gaining sexual gratification from the act).
If proved beyond doubt in court, a defendant can’t argue against a conclusively proved presumption.
Question: Ted meets Mary in a bar. They start talking and get on well. Mary invites Ted back for a nightcap at her hotel. They start kissing and Mary consents to them having sex.
The sex, however, is much rougher than Mary is used to and she is not enjoying it. Ted then whispers something to Mary which she finds repulsive. She tells Ted to stop, which he fails to do. She says this several times loudly until she eventually pushes him off.
Has Ted committed the offence of rape?
Ted has committed the offence of rape.
Consent can be withdrawn at any time.
Mary has explicitly made it clear she wants him to stop immediately, Ted has not done so.
The fact Mary consented at the start does not negate the offence.
Ben meets Stacey, both over 18 years old, at an evening college course where they are learning about flower arranging. They get talking and decide to start seeing one another. They go on a few dates and it becomes clear that Stacey is looking for a long term relationship. Ben on the other hand is not, his life as he sees it is all about living for the moment and instead wants to have sex with Stacey a few times and date other people. He decides that he won’t tell Stacey this, and instead tells her that he loves her and will marry her as long as they have sex. Stacey agrees and believes Carl. They have sex a few times and then Ben ends the relationship with a text message. Ben is a police officer.
Considering section 76 of the sexual offences act 2003, has the deception demonstrated by Ben in this situation amounted to a conclusive presumption of consent matter?
No, as it neither related to an inducement nor a deception in relation to the nature and purpose of the sexual act.
Section 76 talks about evidential conclusion relating to consent. It deals with matters specifically relating to where the victim is deceived as to the nature of the act or the purpose of the act. Which is not the case here. Or an inducement of the victim to consent to the relevant act by impersonating a person known personally to the complainant. Again not the case here.
