Rape and Sexual Assault Flashcards
Sexual Offences Act 2003
Objectives:
- modernise the law
- create mostly gender-neutral offences
- bring clarity to the law
- clarify issue of consent
- reduce attrition rate.
s. 1: Who can rape
- Women can be accessory to rape or other assault charges under ss.2,3 & 4 SOA
Expansion of definition of rape
Criminal Justice and Public Order Act 1994, s.142: Anal penetration added
Sexual Offences Act 2003, s.1: Oral penetration added.
Who can be the victim of rape?
SOA, s.79(3): vagina includes surgically constructed one so a male to female transsexual can be vaginally raped.
Rape: Actus Reus
D penetrates the vagina, anus or mouth of V with his penis nd V does not consent to the penetration.
Note: lack of consent is part of the actus reus, not part of the defence.
R v Hughes: the slightest degree of penetration suffices
Rape: Lack of consent
section 76: Conclusive presumptions
section 75: Evidential presumptions
section 74: General meaning of consent
Rape: Conclusive presumptions
Part of the Mens Rea
“it is to be conclusively presumed that the complainant did not consent to the relevant act, and that the defendant did not believe that the complainant consented to the relevant act”
Cannot be rebutted.
1) D intentionally deceived the complainant as to the nature and purpose of the act s.76(2)(a)
- R v Jheeta: only relevant to very rare cases
2) D intentionally induced the complainant to consent by impersonating someone known to her s.76(2)(b)
Cf. R v Clarence
R v B: non-disclosure of HIV is NOT fraud as to the nature of the act.
Rape: Fraud as to nature or purpose
R v Jheeta: Receives text messages from ‘Police’ that she must have sex with D. = guilty
- OG charged with s.76. At CA, still guilty but under s.74 - was tricked about qualities of the person but not as to nature and purpose. Still no consent.
R v Denonald: Father and ex boyfriend. Fraud as to PURPOSE of the act
R v B: threatens to send topless picture if she doesn’t perform on camera. Narrow approach in Jheeta is preferred.
- Omerold & Laird: this should be given s.76 as irrebuttable
Rape: Impersonating someone known personally
Section 76(2)(b):
Originated from war time when men would pretend to be husbands back from war.
- need both impersonation and causal link.
Rape: Evidential Presumptions
Section 75 - Rebuttable
- Threat of violence
- Unlawful detention
- Asleep or otherwise unconscious
- Inability to communicate
- Causing a substance to be taken
Note: on asleep, there was mention to being too drunk to consent, but that didn’t make it into the final bill.
R v Ciccarelli: Evidence to rebut must be beyond fanciful or speculative.
R v Bree: Aimed at tackling rape date drugs, but can be used for sneaking alcohol into drinks.
- Not for coercing to drink more.
Rape: General meaning of consent
Section 74:
“Agrees by choice and has freedom and capacity to make that choice”
R v Malone: Need not resist. Consent is based on agreement. Don’t have to explicitly say yes.
R v Doyle: Stops resisting after violent rape as just wants it to be over. There’s a distinction between reluctant but free exercise of choice, and unwilling submission in fear of more adverse consequences from refusal.
Rape: Capacity to make a choice
R v C: Must have mental capacity to consent.
R v Dougal: A drunken consent is still a consent.
- Here, C couldn’t remember giving consent because she was so drunk. She did know that she would never have sex in the corridor of her accommodation.
Rape: Capacity and intoxication
R v Dougal: A drunken consent is still a consent.
- Here, C couldn’t remember giving consent because she was so drunk. She did know that she would never have sex in the corridor of her accommodation.
R v Bree: D helps her into bed. V curled up in a ball, faced the wall and felt him penetrate. She felt she couldn’t do anything.
- Recognises everyone has different reactions to intoxication. It could be found in evidence that V lost capacity, but can also be found that they were capable of consenting.
R v Hysa: Says that Bree disavowed Dougal
Rape: Freedom to consent
R v Kirk: Economic coercion? 14 year old. D says he will give her £3.25 for food she sleeps with him.
- submitted rather than consented.
R v C: Even though she was eventually over 18, the grooming all her life provided a rebuttal to consent
R v Ali: Grooming has a tendency to limit or subvert the alleged V’s capacity to make free decisions.
Rape: Deception as to person’s characteristics
R v Dica, R v B: Consent valid relating to person’s sexual health.
- Dissenting view in R v Clarence that sex with a diseased person is different in nature
R v McNally: Deception as to gender. Deprived C of the freedom to make the choice = no consent
R v Alex Sharpe: Not active deception, but misunderstanding transgender people
Rape: Mens Rea
- D intended to penetrate the vagina, anus or mouth with his penis and
- D did not reasonably believe that V consented to the penetration
Whether a belief is reasonable is to be deemed by having regard to all the circumstances, including any steps D has taken to ascertain whether V consents.
R v B: D is schizophrenic and believes he has sexual healing powers.
- Held: his delusional beliefs of consent could not render reasonable belief that the victim was consenting.
Rape: ‘regard to all circumstances’
Ashworth: Has led to the jury being able to scrutinise C’s behaviour to determine whether there is anything about it which could have induced a reasonable belief in consent.
Sexual Assault
Section 3
Same consent rules of ss.74-76 apply.
Punishment:
summary: 6 months
inditement: 10 years
Sexual Assault: Touching
Can be touching with any body part, with anything else, through anything else.
R v H: grabbing clothing can constitute touching
R v Bounekhla: Ejaculated on leg
Sexual Assault: Meaning of ‘Sexual’
Section 78
R v H: “do you fancy a shag” and touches her tracksuit.
R v Court: puts 12 y/o over knee and spanks for shoplifting. Says he has a buttock fetish which doesn’t help
R v George: Removed shoes of women against their will as he has a foot fetish.
Does having a secret fetish turn something that isn’t sexual, into something that is?
Sexual Assault: Mens Rea
Intentional touching (R v Heard)
Reasonable belief as with rape
