Sexual Offences Flashcards
What constitutes rape?
s.2 Criminal Law (Rape) Act 1981 provides a [male person] commits rape if he has sexual intercourse with a [female person] who at the time does not consent to it and at that time ke knows she does not consent to the intercourse or is reckless as to whether she does.
What constitutes sexual intercourse?
s.1(2) Criminal Law (Rape) Act 1981 penetration of the vagina by a penis.
AG v Dermody the slightest penetration consitutes intercourse.
What is the mens rea for rape?
s.2(2) Criminal Law (Rape) Act 1981 jury should have regard to presence or absence ofreasonable grounds for belief in consent.
DPP v Morgan an honest belief that someone is consenting negates the mens rea for rape, even if the belief was not reasonable.
DPP v MC indifference to whether the woman was consenting constitutes recklessness, recklessness arose when the man knew there was a risk the woman was not consenting but carried on regardless.
What is consent?
DPP v C consent is voluntary agreement or acquisence by a person of the age of consent with the mental capacity and knowledge or understanding of the facts material to the act.
s.9(1) Criminal Law (Rape) (Ammendment) Act 1990 as ammended consent is free and voluntary agreement to engage in an act
Is it consent if there was no resistance?
R v Olugboja submission does not necessarily mean someone is consenting.
s.9(5) Criminal Law (Rape) (Amendment) Act 1990 as amended failure to offer resistance to an act does not of itself constitute consent.
When does someone not have the capacity to consent?
R v Malone They are too intoxicated, in this case the victim could not move they were so drunk.
R v Mayers They are asleep.
DPP v C O’R A person cannot consent if they are not in a condition to give consent due to sleeo, insensibility, intoxication, handicap, or fraud as to the nature of the act.
What factors might vitiate consent?
Force or the threat of force (R v Olugboja)
Fraud as to the nature of the act (DPP v Sherlock)
Fraud as to identity (DPP v C)
Fraud as to whether they have an STD has not been held to vitiate consent (Hegarty v Shine)
What is sexual assault?
R v Court provides for the three elements of a sexual assault, namely
1) An assault, as defined by s.2 NFOAP 1997 (without their consent).
2) Indencency, judged objectively. An assault is indecent if the secual or carnal context is visible to an independent observer - R v Chase. For some acts it is inherent.
3) Mens rea, the accused intended to commit an assault in indicent manner or indecent circumstances.
DPP v FN (A Minor) SC held that no element of hostility, agrettion, or sexual motivation is required.
Common law offence, punishment for which is provided for under s.2(2) Criminal Law (Rape) (Amendment) Act 1990
What is aggravated sexual assault?
s.3(1) Criminal Law (Rape) Amendment Act 1990 A sexual assault with one of aggravating five factors
1) Serious violence
2) Threat of serious violence
3) Injury
4) Humiliation
5) Degradation
What is rape that is not penis in vagina?
s.4 Criminal Law (Rape) (Amendment) Act 1990 Rape under s.4 is a sexual assault including either
1) penetration of an anus or a mouth by a penis
2) penetration of a vagina by an object held or manipulated by another person.
What is the law concerning engaging in a sexual act with a childer under 15?
s.2 Criminal Law Sexual Offences Act 2006
1) criminalises enagaging in a sexual act with a child under 15 years of age.
2) criminalises an attempt to …
3) defence to prove they were reasonabley mistaken that at the time of the alleged offence the child had attained the age of 15 years
4) the court will consider whether a reasonable person would have been so mistaken
5) the standard of proof is that which applies to civil cases (balance of probablities). this was inserted to comply with the ruling of unconstitutionality in CC v Ireland.
What is the law concerning engaging in a sexual act with a childer under 17?
s.3 Criminal Law Sexual Offences Act 2006
1) criminalises enagaging in a sexual act with a child under 17 years of age.
2) criminalises an attempt to …
3) defence to prove they were reasonabley mistaken that at the time of the alleged offence the child had attained the age of 17 years
4) the court will consider whether a reasonable person would have been so mistaken
5) the standard of proof is that which applies to civil cases (balance of probablities). this was inserted to comply with the ruling of unconstitutionality in CC v Ireland.
What if a female under the age of 17 years engages in an act of sexual intercourse?
s.5 2006 Act shall not be guilty of an offence under this Act by this reason alone.
MD (A Minor) v Ireland and Ors upheld constitutionality of this provision, express difference because females carry the risk of underage pregnancy, males need a deterrent of their own.
What is the law concerning sexual acts with a mentally disabled person?
S.21 Criminal Law (Sexual Offences) Act 2017 it is an offence to engage in or induce a protected person to engage in a sexual act.
A protected person is one who by reason of a mental or intellectual disability or mental illness is incapable of understanding the nature of th act and considering its potential consequences and therefore cannot consent.
It is preusmed the perpetrator knew they were a protected person.
S.22 Criminal Law (Sexual Offences) Act 2017 it is an offence for a person in authority to engage in a secual act with a relevant person.
A relevant person is one who has a mental disablity which restricts their ability to guard themsleves from exploitation.
Is incest legal?
No, S 1 of the Punisment of Incest Act 1908 says male person who have sexual intercourse with a close blood relative may be guilty of incest. s.2 applies to females.
