Sexual Offences

Question 1

what are the purposes of creating sexual offences?

Answer 1

protect personal autonomy 
prevent coercion 
ensure engagements of sexual nature are consensual 
provide freedom to consent legally 
prevent a form of harm

Question 2

what were sexual offences historically seen as?

Answer 2

crimes against honour
man was the owner of property which extended to the wife and daughter
originally seen as only able to be committed by an individual outside of the relationship/family unit
UNTIL R v R 1991 - husband could rape wife

Question 3

what did the CPS find in 2019 in regard to conviction rates, completed prosecutions and cases charged by the CPS?

Answer 3

all saw a decline in the 2019 statistics

Question 4

how has the number of rapes reported grown from 2012-18?

Answer 4

more than doubled

58,657 in 2018

Question 5

what did the 2005 amnesty poll find in relation to stereotypes and ‘culturally approved scripts’?

Answer 5

33% found that women who flirt are partially responsible for being raped

25% found that women who wear revealing clothing are partially responsible for being raped

Question 6

what else dramatically impacts the number of successful convictions for sexual offenses?

Answer 6

high victim withdrawal rates

Question 7

what was the definition of rape under the previous 1956 Sexual Offences Act?

Answer 7

penile penetration without consent
D must know or be reckless as to non-consent
only a man could be guilty of rape

Question 8

what was the previously MR requirement/test for rape?

what case presented this?

Answer 8

if D genuinely believes that V is consenting then he cannot be convicted
EVEN if this belief is unreasonable

Morgan 1976

Question 9

what is the offence of rape under s.1?

Answer 9

intentional penetrations of the vagina, anus or mouth of another person with his penis

B does not consent to penetration

A does not reasonably believe B consents

reasonable belief is determined in regard to all the circumstances, including any steps A has taken to ascertain whether B consents

Question 10

what is the MR for rape under s.1?

Answer 10

not based on whether D actually believed that V was consenting

INSTEAD whether it was reasonable for D to believe that V was consenting

Question 11

what is the AR for rape under s.1?

Answer 11

penetration of the vagina, anus or mouth with his penis

Question 12

what is Ashworth’s balance of harms argument for assessing reasonableness of belief in consent?

what is the rationale?

Answer 12

risk of serious harm vs steps taken to prevent this harm from occurring

it is not unreasonable for an individual to take steps to ensure consent has been given BUT is unreasonable and risky to engage in sex without knowledge of full consent

Question 13

what is the offence of assault by penetration under s.2?

Answer 13

intentional penetration of vagina or anus with a part of their body or anything else
AND the penetration was sexual

B does not consent and A does not believe that B reasonably consents

Question 14

what do s.1 and s.2 not include as an offence in SOA 2003?

Answer 14

oral penetration (either by a man or woman)

Question 15

what is the max sentence for an offence under s.1 or s.2 SOA 2003?

Answer 15

max life sentence

Question 16

what is sexual assault under s.4?

Answer 16

A intentionally touches another person and the touching is sexual
B does not consent
A does not believe that B consents

Question 17

what was established as constituting ‘touching’ in R v H (2005)?

Answer 17

‘touching’ can be done through clothing

Question 18

what is the max sentence under s.3 for sexual assault?

Answer 18

max 10 years

Question 19

what is meant by ‘causing another person to engage in sexual activity without consent’ under s.4?

Answer 19

B intentionally causes another person to engage in activity
AND the activity is sexual
B does not consent to engage in the activity
A does not reasonably believe that B consents

Question 20

what is the max sentence under s.4?

Answer 20

max life imprisonment if it involves penetration

otherwise 10 years

Question 21

how does s.78 define ‘sexual’?

what is the problem with it?

Answer 21

activity is sexual if a reasonable person would consider:
the nature of it sexual
its circumstances or purpose in relation to it is sexual

defines sexual by using the terms ‘sexual’

Question 22

how is ‘consent’ defined under s.74?

Answer 22

a person consents if he agrees by choice, and has the freedom and capacity to make that choice

Question 23

what are the ‘conclusive presumptions’ as to when consent is presumed to be lacking under s.76?

Answer 23

D deceived C to the nature or purpose of the act

D induced C to consent by impersonate someone personally known to C

Question 24

what case represented deception as to the nature of the act?

conclusive presumption

Answer 24

Williams 1923

singing lessons

Question 25

what case represented deception as to the purpose of the act?

Answer 25

Green 2002
masturbation research

Tabassum 2000
breast cancer research

Question 26

what case represented deception as to the identity of the person involved in the sexual activity?

Answer 26

Devonald 2008

ex-girlfriend’s dad impersonated a girl online

Question 27

why did s.76, being deceived as to the nature of the act, not apply in Jheeta 2007?

Answer 27

V was not deceived as to the actual nature of the act, they were deceived as to the extraneous circumstances (being held criminally liable)

Question 28

what did R v B 2007 establish about consent when it considered the transmission of HIV without informing V prior?

Answer 28

held that consenting to sexual intercourse and consenting to it with an HIV positive person did not change the nature of the act
in both cases the consent refers to the sexual act not the HIV status

could be held liable for GBH under s.20 of OAPA still

Question 29

what failure of disclosure would be a consideration of consent under s.74? case?

why would it not be a conclusive presumption under s.76?

Answer 29

failure to wear a condom
Assange 2011

does not change the nature or purpose of the act
instead warps the consent that V provided

Question 30

what case established that deception as to the gender of D amounted to a conclusive presumption under s.76?

why?

Answer 30

McNally 2013

V is entitled to choose whether she has sexual encounters with a boy or a girl
the preference to choose whether or not to have a sexual encounter with a girl was removed by the defendant’s deception

Question 31

what was seen as insufficient to vitiate consent due to ‘deception’ in Monica, R v DPP 2018?

Answer 31

different environmental beliefs

deception as to Ds job (as a policeman)

Question 32

what was also deemed insufficient to amount to deception as to the nature of the act, under s.76, as to vitiate consent in Lawrence 2020?

Answer 32

deception as to vasectomy

sexual intercourse and activity not significantly different to perceived consented conduct

Question 33

what are the evidential presumptions, where C is presumed to have not consented unless D can produce evidence otherwise, under s.75? X6

Answer 33

D threatens/uses violence

D causes C to fear violence

C was unlawfully detained and D wasn’t

C was asleep/unconscious

Cs physical disability means she couldn’t not communicate consent

C was administered a stupefying substance without their consent

Question 34

what did the case of R v Ciccarelli 2011 concern in relation to s.75?

what did it highlight the judgement did not consider?

Answer 34

C was sleeping and drunk, D had taken C to his flat that he shared with his girlfriend

did not consider ‘couples in an established relationship, who understand each other and what is and what is not appropriate and acceptable to them in their sexual relationship’

Question 35

what was established in White 2010 as sufficient to rebut the evidential presumption of being asleep to vitiate consent?

Answer 35

existence of prior consent, before falling asleep, would be enough to allow consideration of existing consent

Question 36

what was established in Bree 2007 in relation to the nature of consent when C is voluntarily intoxicated?

Answer 36

not consenting if V has temporarily lost capacity to choose to engage in sexual activity

consideration of the actual state of mind of V
recognition that V could consume a lot of alcohol voluntarily and still be able to consent

Question 37

how does Ashworth criticise s.74s definition of consent?

Answer 37

‘unfortunately this ‘definition’ simply describes consent in terms of other contested concepts’

Question 38

what prejudicial considerations are not included as to determine consent?

Answer 38

clothing

sexual history