Sexual Assault Offences - Mens Rea Specified

Question 1

What are the mens rea requirements for sexual violation (rape and unlawful sexual connection)?

Answer 1

The defendant meets the mens rea requirements if they;

(I) are aware (believe) that the victim is not consenting or;
(II) have no reasonable grounds to believe that consent was present

Question 2

What constitutes belief and awareness for the purposes of consent?

Answer 2

Belief is understood to be genuine possibility. Therefore if person B recognises that there is a genuine possibility that person A’s consent is not present then they do not have honest belief.

Mens rea for whichever sexual violation is met.

Question 3

What standard is used to determine reasonable grounds?

Answer 3

Reasonable grounds is both a subjective and objective standard. What is reasonable is considered from the defendants view if he were a reasonable person. It is not what he regarded as reasonable.

Question 4

What does R v Clarke stand for?

Answer 4

Reasonable grounds is not what the defendant reasonably believed but what a reasonable person would regard as reasonable in the defendants shoes.

Question 5

Can ignorance of the law serve as a reasonable belief for consent?

Answer 5

No. See R v S and S 25

Question 6

Does the court take into account personal characteristics of the accused?

Answer 6

Generally no, but the reasonable person in the shoes of the defendant standard carries a presumption that the individual in question is sober, sane and of age (adult).

Leeway is given to instances of significant mental impairment but it is the courts discretion to decide.