Rape and Sexual Assaults Flashcards
CONSENT
SIGNIFICANCE OF CONSENT
Establishing both:
* The absence of consent; and
* The fact that the defendant did not reasonably believe that they had the victim’s consent
…will be integral to proving the following offences:
* Rape - section 1 Sexual Offences Act 2003;
* Assault by penetration - section 2 Sexual Offences Act 2003;
* Assault by touching - section 3 Sexual Offences Act 2003; and
* Causing a person to engage in sexual activity without consent - section 4 Sexual Offences Act 2003.
Establishing Consent
To Sexual Activities
Section 74 Sexual Offences Act 2003
3 elements
Element 1
They agree
by choice.
Element 2
They have the
freedom to choose
i.e. their consent is
not a submission
induced via fear, fraud, duress or threats.
Element 3
They have
capacity to choose
i.e. they have made a
reasoned, informed decision.
Establishing A Lack
Of Capacity To
Agree By Choice
A complainant will lack capacity to consent to sexual
activity - where their:
* Understanding: and
* Knowledge
of the activity is so poor that they are not in a
position to decide whether or not to consent.
R v Howard(1965J 1 WLR 13.
Withdrawal Of
Consent
Can Consent That Is Initially Freely
Given Subsequently Be Withdrawn?
Yes
— at any time.
Can Consent To Engage
In Sexual Activity With
A Person Who Is Aware
That They Are HIV
Positive Negate The
Consent Provided?
If The Person Who Is HIV Positive
Makes No Reference To Their
Condition Prior To Obtaining
Consent From The Complainant To
Sexual Intercourse
Does not invalidate consent
R v B [2006] EWCA Crim 2945.
May constitute an offence under OAPA 1861.
If The Person Who Is HIV Positive
Actively Assures The Complainant
That They Are Not HIV Positive Prior
To Obtaining Consent To Sexual
Intercourse
Consent could be negated.
Does Deception As
To Gender Negate
Consent?
Yes
McNally v R (2013) EWCA crim 1051
Failure To Adhere To
Express Conditions
Will Negate Consent
Consent To Sexual Intercourse Was
Granted On The Express Condition
That A Condom Is Worn
Assange v Sweden [2011] EWHC 2489
Consent To Sexual Intercourse Was
Granted On The Express Condition
That The Male Did Not Ejaculate
Inside The Female’s Vagina
R (F) v DPP [2013] EWHC 945 (Admin)
Aids To Establishing
The Absence Of
Consent
2 Presumptions
2 Presumptions
Evidential presumptions
Conclusive presumptions
Purpose Of The Presumptions?
They assist in determining whether consent was
absent when dealing with the offences of either:
* Rape;
* Sexual assault by penetration;
* Sexual assault by touching; and
*Causing sexual activity without consent
Evidential
Presumptions
Section 75 Sexual Offences 2003
The Test Put Simply
If the prosecution can prove 3 steps - then:
* It will be presumed that the victim did not
consent to the act; and
*The burden will shift onto the defendant to
produce evidence to displace the presumption
that consent was not present.
Step 1
The defendant
did the
relevant act.
step 2
That at the time
of doing the relevant act
any of the
circumstances A — F
existed.
Step 3
The defendant knew
that those circumstances existed.
Effect Of Proving The 3 Steps
The complainant is to be taken not to have
consented to the relevant act; and
The defendant is to be taken not to have
reasonably believed that the complainant
consented.
unless sufficient evidence is adduced by the
defence to raise an issue that both:
* The complainant consented; and
* The defendant reasonably believed that the
complainant consented.
What Is A Relevant
Act?
The actus reus
Of any Of the following offences..
Section 1
- Rape
The defendant intentionally penetrating with
their penis, the vagina anus or mouth of the
complainant.
Section 2
- Assault By Penetration
The defendant intentionally penetrating
with a part of their body or anything else,
the vagina or anus of the complainant
-where the penetration is sexual.
Section 3
- Sexual Assault By Touching
The defendant intentionally
touching the complainant
where the touching is sexual.
Section 4
- Causing A Person To Engage In
Sexual Activity Without Consent
The defendant intentionally
causes the complainant to
engage in an activity
— where the activity is sexual.
Circumstances A - F
Circumstance A
Immediately before or at the time of the
relevant act - anybody was either:
Using violence against the complainant; or
Was causing the complainant to fear the use Of
immediate violence against them
Circumstance B
Immediately before or at the time of the relevant act -
anybody was causing the complainant to fear that
either:
* Violence was being used, or
* That immediate violence would be used
against another person.
Circumstance C
Both:
* The complainant was unlawfully detained; and
* The defendant was not unlawfully detained
at the time of the relevant act.
Circumstance D
At the time of the relevant act - the complainant
was either:
*Asleep; or
* Unconscious.
Circumstance E
Due to physical disability
-the complainant was not able to
communicate their consent.
Circumstance F
Any person has
administered or caused to be administered
without the complainant’s consent,
a substance that would have
stupefied or caused the complainant
to be overpowered
at the time of the relevant act.
Conclusive
Presumptions
Relating To Consent
Section 76 Sexual Offences Act 2003
Consequence Of Establishing A
Conclusive Presumption
It is proven conclusively that:
* The complainant did not consent: and
* The defendant did not believe that the complainant
consented.
The defence cannot argue against the presumption
once it is proved.
Conclusive Presumption 1
The defendant
intentionally deceived
the complainant
as to the nature or purpose
of the relevant act.
What Will Not Be A
Deception As To The
Nature Or Purpose
Of The Relevant Act?
False Promises
False promises
made to induce the complainant
to engage in a relevant act.
e.g. a false promise to marry in return for sex or
a false promise to pay for sex,
Deceiving the complainant
into having sex more frequently
than they would othewse have wished.
R v Jheeta (2007) EWCA crim 1699.
Conclusive Presumption 2
The defendant
intentionally impersonated
somebody known personally
to the complainant.
RAPE & SEXUAL ASSAULT OFFENCES
- Rape - section 1 Sexual Offences Act 2003;
- Assault by penetration - section 2 Sexual Offences Act 2003;
- Assault by touching - section 3 Sexual Offences Act 2003; and
- Causing a person to engage in sexual activity without consent - section 4 Sexual Offences Act 2003.
COMMON POINTS
* The fact that the prohibited actions for each offence must be carried out intentionally;
* The actions must have been carried out without consent; and
* The defendant does not reasonably believe that the victim consented.
HOW DO THE OFFENCES DIFFER?
The aspects in which the offences diverge relate to:
* The nature of the defendant’s actions - i.e. does the offence involve penetration or touching;
* What part of the victim’s body is either penetrated or touched; and
* What the defendant uses to penetrate or touch the victim.
LEARNING POINT - SEXUAL TOUCHING
Do The Prosecution Need To Prove That The Defendant Intended The Touching To Be Sexual?
No – there is no requirement to prove sexual intention as part of the mens rea element under Section 3 Sexual Offences Act 2003 - Attorney – General, Reference (No. 1 of 2020) [2020] EWCA Crim 1665
In this case a defendant, whilst travelling on a train, kissed a passenger on the lips without her consent, and stated at trial that the kiss had not been sexual and was merely a friendly reassuring gesture.
The Court accepted that it was for the prosecution to prove that the defendant intended the touching to be sexual.
The Court of Appeal concluded that proof of sexual intention as part of the mens rea element of the offence is not required.
Rape
Section I Sexual Offences Act 2003
Intentionally penetrating either the:
* Vagina (including the vulva);
* Anus; or
* Mouth
.with a penis - and both:
* The complainant does consent to the penetration; and
* The defendant does reasonably believe that the
complainant consents.
