Rape, sexual assault, aggravated sexual assault and incest Flashcards
what is rape?
s. 2(1) of the Criminal Law (Rape) Act 1981- criminalises a male who has intercourse with a female person who
doesn’t consent to it and he knows that she does not consent or he is reckless as to whether she does or does not consent to it.
what is the actus reus for rape
This is the accused’s conduct (sexual intercourse) and circumstances (no consent)
define sexual intercourse
Sexual intercourse” means ONLY the penetration of a vagina by a penis.
what was established in the case of Ag v Dermondy
Only slight penetration is required
What was established in the case of R v Matthews
A post op trans woman can be a victim (artificial vagina)
what is the mens rea for rape?
S.2(2.) presence or absence of reasonable grounds for belief of consent is to be considered by the jury.
Explain the facts of the case and what was established in the case of DPP v Morgan
This case concerned three men who had been invited by a man to have kinky sex with his wife. The man claimed that his wife would protest and struggle, but that she liked that sort of thing. The accused argued that they honestly believed the woman was consenting to sexual intercourse on
the basis of what the husband told them and that having had such a belief, they were not guilty of
rape.
The HOL accepted that an honest belief in consent is sufficient to negative the mens rea of rape, even if such belief was unreasonable. However the more unreasonable the less likely he believed it. It is for the prosecution to prove the accused did not honestly believe he consented.
what is the punishment for rape
Rape can only be tried in the central criminal court.
The max punishment, is upon conviction on indictment, life imprisonment- s. 48 Offences Against the Person Act 1861.
Rape under s. 4 of the Criminal Law (Rape) Amendment Act 1990
Rape under s. 4 is a sexual assault including either of the following sexual acts of penetration:
(i) The penetration (however slight) of an anus or a mouth by a penis, or
(ii) The penetration (however slight) of a vagina by any object held or manipulated by another person.
Describe the three stages for proving sexual assault
(i) First stage= proving an assault: any intentional touching of another person without the consent of
that person and without lawful excuse.
This accords with s. 2(1) of the Non-fatal Offences Against the Person Act 1997, already
considered which governs assault.
(ii) Second stage= proving indecency. The test for indecency is objective.
(iii) Third stage= is securing a conviction. It concerns mens rea. The accused must have INTENDED to
assault the victim in a manner which right-minded persons would clearly think was indecent.
what is the punishment for sexual assault
The max punishment upon conviction on indictment is, generally speaking, 10 years’ imprisonment. But if the
victim was a child, i.e. under the age of 17 years, the max punishment upon conviction on indictment, 14 years’
imprisonment- s. 2(2) of the 1990 Act.
what is incest?
Occurs when close blood relatives have sex with each other.- s. 1 male persons or s. 2 female persons of The Punishment of Incest Act 1908 (‘’The 1908 Act’’. Incest concerns sexual intercourse only. No other sexual act can give rise to the offence.
what is not criminalised as incest?
The 1908 doesn’t criminalise sexual intercourse with step, adopted or fostered relatives. It does, however, criminalise sexual intercourse between a half-brother and half-sister under s. 3.
what is the max punishment for incest?
The max punishment for male persons is life imprisonment- s. 1.
The max punishment for female persons is 7 years imprisonment!
Under s.9(2) A person doesn’t consent to a sexual act if:
S.9(2)
A person does not consent if:
i. Permitted it due to force/threat of force or fear.
ii. Asleep or unconscious
iii. Incapable of consent due to alcohol or drugs
iv. Physical disability which prevents communication of consent
v. Mistaken as to nature and purpose of the act
vi. Mistaken as to identity of the person involved.
vii. Being unlawfully detained at the time
viii. The only expression of consent is from a 3rd party ie person other than alleged victim.
How is consent defined under s.9 of the Criminal Law(Sexual Offences) Act 2017
a person consents to a sexual act if he or she freely and voluntarily agrees to engage in that act.
Describe immunity for sexual offences
Section 5: if a female and a male under the age of 17 years have sexual intercourse, only the male will be guilty under the 2006 act.
Describe consent for protected persons for the purposes of sexual offences
for the purposes of this section, a person lacks the capacity to consent to a sexual act if he or she is, by reason of a mental or intellectual disability or a mental illness, incapable of:
(a) Understanding the nature, or the reasonably foreseeable consequences, of that act,
(b) Evaluating relevant info for the purposes of deciding whether or not to engage in that act, or
(c) Communication his/her consent to that act by speech, sign language or otherwise.
describe Sexual offences Against Relevant Person by Person in Authority:
s. 22 of the 2017 Act criminalises the offence of engaging in a sexual act with a relevant person by a person in authority. defines ‘person in authority’ as parent, step parent, loco parentis, responsible for education, supervision or welfare.
s. 22(2) criminalises a person in authority who invites, induces, counsels or incites a relevant person to engage in a sexual act.
S. 22(3) there is a defence of reasonable mistake in respect of persons who are reasonably mistaken as to the relevant person (i.e. they didn’t know that they were engaging in sexual acts with a protected person).
s. 22(4) Consent is not a defence.
