Rape and Sexual Offences Flashcards

Question

What is the significance of Elbekkay [1995]?

Answer 1

Conclusive presumption of impersonation. D had intercourse with V, realising she believed him to be her boyfriend. This does not fall under s. 76(2)(b) as D had not intentionally impersonated her boyfriend, but there was no consent under s. 74

Answer 2

Evidential or rebuttable presumptions about consent

Answer 3

If D does the relevant act within the circumstances specified in s. 75(2), and D knew that those circumstances existed, V is presumed to not have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and D is presumed not to have reasonably believed that V consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed V to have consented.

Answer 4

Violence/fear of immediate violence against V/another person, V was unlawfully detained, V was asleep or otherwise unconscious, V would not have been able to communicate lack of consent due to physical disability, V had (without consent) been administered or caused to be taken a substance which was capable of causing or enabling (but did not necessarily cause or enable) V to be stupefied or overpowered

Answer 5

The definition of 'immediately before' in ss. 75(2)(a)-(b). if the relevant act is a continuous series of activities, the violence must have been used immediately before the first sexual activity began

Answer 6

The presumption is rebutted, and the prosecution must prove beyond reasonable doubt that the actus reus and mens rea of rape existed

Answer 7

The CoA emphasised that to rebut the presumption, D had to adduce evidence that he reasonably believed V consented, and it is insufficient to say that he merely or honestly believed so. The court upheld the conviction of D for sexually assaulting a woman who was asleep, as evidence that she had earlier been friendly towards him was insufficient evidence that she had consented or that he reasonably believed she had.

Answer 8

The general meaning of consent

Answer 9

V must actively agree to the penetration if it is not to amount to rape. If V was so drunk she was unaware that D was having sexual intercourse with her, the actus reus of rape is made out.

Answer 10

V does not need to have resisted or opposed penetration for it to amount to rape. If V is asleep throughout the act of intercourse, there is still no positive consent and the actus reus of rape is made out.

Answer 11

V had been kidnapped by D, and was terrified he would kill her. She pretended to consent to the intercourse, but the CoA held that the actus reus of rape was established because she subjectively (in her mind) had not consented. This subjective element is supplemented by D's subjective mens rea of whether he reasonably believed V consented.

Answer 12

The HoL in Gillick v West Norfolk and Wisbech Area Health Authority decided that someone under 16 years of age can validly consent to being given contraceptive treatment, provided she is mature enough to understand the issues involved (including the moral ones)

Answer 13

The CoA held that while V's consent and/or D's reasonable belief that V is over 16 is irrelevant for s. 5 (rape of a child under 13), it may be relevant in sentencing.

Answer 14

An adult is presumed to have the mental capacity to consent. Under s. 3, a person is unable to make a decision for himself if he is unable to understand information relevant to the decision, to retain that information, to use or weigh it as part of the decision-making process, or to communicate his decision by any means.

Answer 15

The CoA (approved by the SC in 2021) listed matters that must be understood by V to have capacity to consent. These include the sexual nature and character of the act, that V can decide whether or not to consent, that it is a reasonably foreseeable consequence that the woman may become pregnant, that there are health risks involved, etc.

Answer 16

The test for capacity is largely visceral rather than cerebral, and owes more to instinct/emotion than to analysis. The low hurdle for capacity is justified as people without capacity issues do not take decisions pertaining to sex on the basis of intellectual understanding.

Answer 17

By asking whether V is found generally to have capacity to consent to sex (despite having a mental disorder), and whether V did in fact consent on that particular occasion

Answer 18

The CoA held that cases of excessive but voluntary alcohol consumption do not fall under s. 75(2)(d) unless V is unconscious. If V, despite her copious consumption of alcohol, retains the capability to consent to intercourse, and does in fact do so, it does not amount to rape.

Answer 19

Leading case on consent after threats pre-SOA. The court held that consent necessarily involves submission, but not every submission involves consent. The jury must look at not the nature of the threat (i.e. amount of violence threatened) but at its effect on the victim.

Answer 20

Reluctant but free acquiescence amounts to consent, but submission does not. The former may be more likely in a long-term and loving relationship, while the latter may be more likely in response to fear of adverse consequences.

Answer 21

V (aged 14) was homeless and sleeping rough. D had previously abused her, and offered her money in exchange for sexual intercourse. The CoA upheld his conviction, indicating that an 'offer' to have intercourse in exchange for some benefit can be without consent. The jury should look at all the pressures and broad circumstances when deciding whether V had the freedom and capacity to consent.

Answer 22

Grooming does not necessarily vitiate consent. However, if there is evidence of acquiescence or acceptance rather than positive consent, it is open to the jury to conclude that V had in reality unwillingly gone along with acts she did not in fact wish to engage in.

Answer 23

The CoA explained that if there is evidence of exploitation of a young and immature V who may not understand the full significance of what they are doing, the jury can factor that into their decision of whether or not there was genuine consent.

Answer 24

Conditional consent. V sought judicial review of the DPP's decision to not prosecute D for rape/sexual assault for ejaculating inside her when he had agreed not to. The HC held that consent had been negated due to D's knowledge that V did not, and would not have, consented to the deliberate ejaculation inside her.

Answer 25

Deception and consent. D (who had a history of confusion around her gender identity) was convicted of assault by penetration for claiming to be a boy and digitally/orally penetrating V. The CoA held that, depending on the circumstances, deception as to gender vitiates consent.

Answer 26

Deception and consent. D claimed to be an environmental activist when he was, in fact, an undercover police officer. The case was considered under the 1956 Act. The CoA held that deceptions which are not closely connected to the performance of the sexual act, or are not intrinsically fundamental, cannot be treated as cases of impersonation. Nor can such peripheral deceptions vitiate consent.

Answer 27

Deception and consent. D falsely told V that he had had a vasectomy, and V agreed to unprotected intercourse. She became pregnant and underwent an abortion. The CoA held that consent was not vitiated, as the 'but for' test for consent obtained through deception is insufficient on its own. V did not impose any physical restrictions on D. A lie about fertility status is related to the risks and consequences of intercourse, but not to the physical performance of intercourse itself.

Answer 28

The CoA suggested that if D accidentally penetrated the anus, this would not amount to anal rape because there was no intent to penetrate the anus. A better charge might be attempted vaginal rape. However, this reasoning is flimsy because anal and vaginal penetration are within the actus reus of rape, and an intent to penetrate either should suffice for the mens rea.

Answer 29

D knew V's husband, who had asked him to have intercourse with V, was controlling and short-tempered. The CoA concluded that it was for the jury to determine whether D did not reasonably believe V consented, even though she might have appeared to do so at the time. This suggests D's reasonable belief must be in the sense of the legal definition with consent, i.e. free consent with capacity

Answer 30

Whether 'reasonable' considers D's subjective characteristics. D was a paranoid schizophrenic who held a delusional belief that he was healing V by raping her. Psychiatric evidence established that D's illness did not affect his ability to understand V's lack of consent, leading the CoA to uphold his conviction. If D's delusional belief did lead him to believe that V consented when he/she did not, this would not render it a reasonable belief in law. Unless the state of mind amounts to insanity in law, delusional belief in V's consent is no defence.

Answer 31

A commits assault by penetration if he intentionally penetrates the vagina or anus of B with a part of his body or anything else, the penetration is sexual, B does not consent to the penetration, and A does not reasonably believe B consents.

Answer 32

A commits sexual assault if he intentionally touches B, the touching is sexual, B does not consent to the touching, and A does not reasonably believe B consents.

Answer 33

Touching is defined in s. 79(8) as touching with any part of the body, with anything else, or through anything.

Answer 34

The CoA held that grabbing hold of V's trousers counted as touching.

Answer 35

Under s. 78, penetration, touching, or any activity is sexual if a reasonable person would consider that whatever its circumstances or any person's purpose in relation to it, it is because of its nature sexual, or because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.

Answer 36

CoA considered the meaning of 'sexual'. D kissed V on the mouth, and later claimed it was a supporting act rather than a sexual one. The court held that the prosecution does not need to prove that D intended his touching to be sexual, but only that (under s. 78(b)) a reasonable person considered, given the nature of the activity, it may be sexual, and because of D's purpose, it was sexual.

Answer 37

A is guilty of causing sexual activity without consent if he intentionally causes B to engage in an activity, the activity is sexual, B does not consent to engaging in the activity, and A does not reasonably believe B consents.

Answer 38

Under s. 4, only V (and not necessarily D) needs to have engaged in a sexual activity. D caused a child to watch a pornographic film, and was held guilty even though he had not touched the child or sought sexual gratification by watching the film (though he had hoped that V would engage in sexual activity with him as a result of watching it).

Answer 39

The CoA suggested that a conversation or an exchange of texts may amount to sexual activity.

Answer 40

D who had a foot fetish and removed V's shoes without her consent was not guilty of indecent assault under the SOA 1956. If the touching is not inherently capable of being perceived as indecent/sexual, then it is immaterial whether D's purposes were in fact indecent/sexual.