Sem4 - Sexual Assault Flashcards
s1-4 of Sexual Offences Act 2003 (big upgrade on SOA 1956, but still needs work?)
- Consent/lack thereof is obvs a HUGE, NECESSARY COMPONENT of these offences
Sex activity incurs penalty/attract liability when the victim doesn’t consent to that activity
Under SOA 2003, there are number of circumstances where consent can be “presumed to have been negated”, even if vic doesn’t explicitly say no/demonstrate lack of consent
These circs fall into 2 categories: Conclusive Presumptions and Evidential Presumptions
Conclusive Presumptions = Not Rebuttal (can’t be refuted):
if these circumstances are shown to exist, u can safely presume that vic did NOT give consent, & D had no REASONABLE belief in consent (ie, a reasonable person wouldn’t have that belief)
Key about Conc Presumptions : IF u can show that one of those CP circumstances existed
- Prosecution has to show one of those circs existed, also has to establish a CAUSAL LINK bw circumstances of the act & vic’s consent —» to show that vic’s consent was BASED ON (ie, conditional on) those circumstances existing
—» meaning, if those circumstances didn’t exist, vic wouldn’t have consented
What are the circumstances that fall under s76 SOA “Conclusive Presumptions”?
- There’s only 2 of them
1) That D deceived vic abt the nature and purpose of the act
2) That D impersonated someone known to the vic in order to carry out the sex act
- Courts define: “nature and purpose” = there must be some degree of overlap bw what D intended in carrying out sex act, & what vic felt was the purpose of the sex act. If there ISN’T, then consent was negated
- ie, if D was doing sex act for sexual gratification, & vic thought it was being done for medical purposes(?), then there’s a lack of correspondence/overlap — we can say vic didn’t consent
But: Case of Linekar — D deceived a prostitute into having sex w him by claiming (falsely) that he would pay her. Although she would not have slept w him had she known the truth (she thought it was commercial transaction), this was held not to be a deception as to the nature of the act (lol misogyny)
- Court held: doesn’t matter what the purpose of the act was for the vic herself; what mattered is what the vic thought the purpose of the act was for the D
— since she believed the purpose for the D was sexual gratification, & Ofc the purpose for D himself WAS sex grat, there was enough ‘meeting of the minds/consensus ad idem’ for it to count as consent
When s76 applies, & prosecution has proven both circumstances AND causal link bw circs & vic’s consent beyond a reasonable doubt, then D has NO chance to rebut — they can’t bring in ANY evidence to suggest otherwise
- so in a Problem Ques, if s76 circumstances exist, & therefore applies? in analysis @ Actus Reus stage u MUST SHOW that D’s actions CAUSED vic to consent, conditional on those circumstances existing
- if u CAN’T demonstrate the causal link “beyond a reasonable doubt”, then must ALSO consider ‘consent’ under s74
- meaning ur PQ answer must include analysis of both
Evidential Presumptions = Presumptions that are Rebuttable (s75)
- D can still present argument as to why consent existed even in the presence of these circumstances
—» ie, if D can show vic consented prior to those circumstances existing, or if they can show vic had history of consenting even in the presence of the same circumstances- ie, if there’s history of violent sex bw D & vic, then D can just say they assumed there was consent @ this time too
With s75 EP, it’s prosecution’s job first to show that these circumstances exist, beyond reasonable doubt
Then burden of proof switches to D to show that there’s reasonable doubt (“on the balance of probabilities”) on the lack of consent; that consent still existed IRRESPECTIVE of the circumstances existing
If D can cast their reasonable doubt on s75 circumstances, then burden shifts BACK TO PROSECUTION to show that consent didn’t exist under s74
So in a Prob Ques, if u find that circumstances under s75 exist, ALWAYS ALWAYS consider s74 as well
If s75 circumstances exist, & D KNEW abt these circumstances existing, then this would also PROVE his/her own lack of reasonable belief in consent
Ie, if they knew they were unlawfully detaining/threatening the vic, then that also proves they have the Mens Rea to commit the offence (that they have a lack of reasonable belief in the vic’s consent)
—» so in a Prob Ques, u’d discuss D’s knowledge of the circumstances existing both @ Actus Reus stage and Mens Rea stage
What circumstances fall under s75 (Evidential Presumptions)?
- vic being unlawfully detained during the sex act
- vic being given a substance (stupefying agent) that makes them easily overpowered/subdued during act, WITHOUT their consent, AND THE D KNOWS ABT IT
- vic being asleep/unconscious during
- if D is using/threatening violence against the vic (or someone known to the vic)
- if vic has physical disability that stops them from consenting
—»> in all these circumstances, unless D can give evidence to show otherwise, it’s safe to presume consent does not exist
In a Prob Ques where u find s76 circumstances, u can stop analysis there ONLY IF u can show there’s a strong causal link bw that circumstance & vic’s consent
If u can’t show that, then U MUST DISCUSS s74 AS WELL
So all previous cards = Actus Reus stuff. What is the MENS REA of rape?
- when the D didn’t reasonably believe the vic consented, & commited sex act anyway. (That’s what u have to prove)
- 2nd element: intentional penile penetration on D’s part. It can either be Direct or Oblique intention
Under s1(2) of SOA 2003, test for lack of reasonable belief = Qualified Objective Test
Would a reasonable person in D’s shoes have believed consent existed/was given? Looking @ what’s in mind of D
—» when looking @ consent at the Actus Reus stage, ur looking @ what’s in vic’s mind
