Sexual offences Flashcards
R v Kirk [2008] EWCA Crim 434
consent
An offer for a benefit in exchange for sex to vulnerable and desperate persons can be submitted to without consent
Homeless teenager consented to sex for money to buy food
R v Jheeta [2007] EWCA Crim 1699
consent
Deception on the situation that were threatening did not fall within the meaning of ‘nature and purpose’ in s76 Sexual Offences Act
=> although the conclusive presumption in S76 Sexual Offences Act 2003 did not apply, V did not consent within the meaning of S74 of the Act
sent texts “from police” ordering B to have sex with him to avoid fines for causing distress
R v McNally [2013] EWCA Crim 1051
consent
Deception as to one’s biological gender can vitiate consent under s.74 of the Sexual Offences Act (SOA) 2003.
The defendant (D) and the victim (V) were in an online relationship.
D was a girl but V believed D was a boy as D identified herself ‘Scott’ and wore men’s clothing.
When they met in-person, D penetrated V with a dildo on multiple occasions.
V claimed she would not have consented to this if she knew D’s true gender.
D was convicted of the offence of assault by penetration under s.2 SOA 2003 at first instance.
R (F) v DPP [2013] EWHC 946 (Admin)
consent
lying as to intention to withdraw before ejaculation can vitiate consent
Assange
Lawrance
consent - s 74
=> we may wonder why it is not treated under s 76 as deception regarding the nature of the act
Removal of condom (Assange) can vitiate consent but not lying as to a vasectomy ( Lawrance)
The Court of Appeal argued that the distinction between the two cases lay in the fact that the complainant inLawranceagreed to sex without any ‘physical restrictions’ and without deception as to the ‘physical performance’ of the sex act. Wearing a condom relates to ‘physical performance’, but a vasectomy does not.
[37]’ The deception was one which related not to the physical performance of the sexual act but to risks or consequences associated with it. We should add that the question of consent could not be affected by whether pregnancy followed or not’
R v Bree [2007] EWCA Crim 804
consent
Intoxication does not automatically vitiate consent to sexual intercourunder s. 74 Sexual Offences Act 2003, whether it did so is a question of fact on the state of mind of the complainant
= Consent will be lacking if alcohol has deprived the complainant of the capacity to make a choice
V was engaged in sex with D while V was highly intoxicated from drink
D argued though V was drunk, she was lucid enough to consent
D was convicted of rape
D appealed on the basis that judge had made no reference on the ability to consent while intoxicated
R v Williams [1923] 1 KB 340
consent s 76
see also bogus medical test
D induced V to masturbate while connected to monitors as part of a bogus medical procedure (indecent assault) Green (2002)
Tabassum: examined women’s breasts
It was held that her consent was vitiated by fraud as to the nature and quality of the act.
The defendant was a singing coach. He told one of his pupils that he was performing an act to open her air passages to improve her singing. In fact he was having sexual intercourse with her.
R v Linekar [1995] 3 All ER 69
consent s 76
appeal allowed. Non-payment of prostitute does not vitiate consent (understood nature and purpose)
D hired a prostitute, but did not pay her after
D was convicted of rape.
R v Devonald [2008] EWCA Crim 527
consent s 76
this broad approach was later rejected in R v Bingham
facts: D was charged with causing a person to perform a sexual activity without consent by pretending online to be an American called Grant and getting his girlfriend (V) to perform sexual acts and recording the material for a purported blackmail attempt.
= D’s deception did not negate consent because he was not impersonating someone known personally to V. Nor did his deception as to purpose negate consent because one of his purposes was to obtain sexual gratification, which V also believed to be the purpose of the act.
the conclusive presumption under s76 Sexual Offences Act 2003 applied
D thought that his daughter’s ex-boyfriend (V) had mistreated her and sought revenge
D pretended to be 20-year-old girl on the web and persuaded V to masturbate on webcam so as to release the footage on the internet
D was charged with causing a person to engage in sexual activity without consent under s4 Sexual Offences Act 2003
R v GC 2010 ONCA 451.
consent s 76
Must be impersonating someone known to B impersonating B’s boyfriend (who was D’s twin brother)
Speck 1977
sexual assault s 3
Can be by omission
n fail to remove a child’s hand from A’s genitals
R v H [2005] EWCA Crim 732
sexual assault
Touching of clothing might be sexual
R v K [2008] EWCA Crim 1923
rape s1
where it is unclear whether penetration was of the vagina or of the anus, it is permissible to allege penetration of “the vagina or the anus”. The jury will be entitled to convict if they are sure that there was non-consensual penetration of one or the other by the defendant with his penis.
R v Morgan [1976] AC 182
rape s 1 - consent - pre SOA
This case led to significant controversy and criticism, and the law was later changed by the Sexual Offences Act 2003 to include a reasonableness test in determining whether a defendant had a genuine belief in consen
The House of Lords ruled that if the defendants had an honest belief that the woman was consenting, even if that belief was unreasonable, they should not be found guilty. The jury convicted all defendants and they appealed.
Morgan had invited the three men to his house, telling them that his wife enjoyed violent sex and would pretend to resist but that this was part of her fantasy. The men had intercourse with Mrs. Morgan, who resisted and later claimed that she had been raped.
The defendants argued that they ge
f
R v G [2008] UKHL 37
offences against children - consent - reasonable belief
It does not matter what the defendant believed the child’s age to be, even if his belief was reasonable. It also does not matter that the defendant himself was a child.
A (15) had sex with B (12). B ‘consented’. A said B had told him she was over 13 so had reasonable belief
