sexual offences Flashcards
what are the elements of rape?
actus reus: penile penetration of the anus, mouth or vagina with an absence of B’s consent
mens rea - an intention to penetrate and no reasonable belief of consent
what is s76, the conclusive presumptions for consent as an actus reus of rape?
according to this section, if either of the situations set out in s76 exists, it will be conclusively presumed that V did not consent (actus reus), and D did not reasonably believe that V consented (mens rea)
what are the situations under s76(2)?
- D intentionally deceived V as to the nature or purpose of the relevant act (lies that it is something other than penile penetration, also lies that the purpose of the act is something other than sexual gratification)
- D intentionally induced V to consent to the relevant act by impersonating a person known personally to V
how can the prosecution establish consent in the context of actus reus and mens rea?
they must prove beyond reasonable doubt that either of these circumstances exists
what is included under s75 in relation to consent?
evidential presumptions
sets of circumstances where it is presumed that V did not consent (actus reus) and that D did not reasonably believe V was consenting (mens rea)
what are the evidential presumptions included under s75?
a. use or threat of violence by anyone against V
b. use or threat of violence against another by anyone
c. V was unlawfully detained
d. V was asleep or unconscious
e. V was not able to communicate consent because of a disability
f. V was involuntarily administered by anyone a substance capable of stupefying or overpowering themselves
what must the prosecution prove beyond reasonable doubt for S75 to be used?
- that D did the relevant act
- one of the sets of circumstances in s75 exist
- D knows that these circumstances exist
- the presumption that V did not consent and D did not reasonably believe V was consenting will then be triggered
what is the general definition of consent under s74?
a person consents if he agrees by choice and has the freedom and capacity to make that choice
what are the elements of sexual assault?
Defendant touches victim, the touching is sexual where there is an absence of consent. there is an intention to touch and no reasonable belief in consent
what does touching include s79(2)?
touching with any part of the body, with anything else, through anything and touching amounting to penetration
what is sexual touching?
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 is sexual
when will the mens rea of intention to touch not be satified?
where the touching is completely accidental or inadvertant
how is no reasonable belief in consent established?
s76 and s75 create presumptions here, where these presumptions do not apply it is satisfied if the defendant does not reasonably believe the victim consent. usually covers where:
- intentds V lacks consent
- knows V lacks consent
- is reckless as to consent
- does not consider consent
- honestly but unreasonably believe V consents
what are the elements of causing a person to engage in sexual activity?
- D intentionally causes V to engage in a sexual activity (causation in law and fact), (definition of sexual under sexual assault)
- there is an absence of consent and no reasonable belief in consent (s76 and s76 create presumptions, if these aren’t satisfied it is satisfied if the defendant does not reasonably believe the victim consents)
