Sexual Offences

Question 1

FRAUD AS THE NATURE OF THE ACT

Answer 1

R v Williams
R v Flattery

Question 2

FRAUD AS TO THE IDENTITY OF THE ACCUSED INDIVIDUAL

Answer 2

LANDMARK CASE: People (DPP) v. C
R v. Elbekkay

Question 3

ANY PENETRATION (CARNAL KNOWLEDGE) IS SUFFICIENT

Answer 3

People (A.G) v Dermody

Question 4

FRAUD AS TO THE ATTRIBUTES OF THE ACCUSED INDIVIDUAL

Answer 4

Papadimitropoulos v. R

Question 5

FRAUD DOES NOT ALWAYS CONSTITUTE RAPE

Answer 5

R v. Linekar

Question 6

RESISTANCE/FORCE IS NOT ALWAYS REQUIRED

Answer 6

R v. Olugboja

Question 7

DISCLOSURE

Answer 7

R v. Dica

Question 8

INTOXICATION

Answer 8

R v. Bree

Question 9

WITHDRAWAL OF CONSENT

Answer 9

Kaitamaki v. R

Question 10

Mens Rea for Attempted Rape (Case Law)

Answer 10

Both the offences of rape and attempted rape require IDENTICAL MENS REA, which is the intention to have sexual intercourse and the knowledge of, or recklessness as to, the absence of consent.

R v. Khan

Question 11

STATUTE & SECTION WHICH PROVIDE THE DEFINITION OF RAPE

Answer 11

Criminal Law (Rape) Act 1981, section 2 (1) provides that:

A man commits rape if he has unlawful sexual intercourse with a woman who at the time of the intercourse did not consent to it, and at the time he knows or is reckless as to whether she does or does not consent to it.

Question 12

STATUTE & SECTION WHICH PROVIDE THE DEFINITION OF RAPE

Answer 12

Criminal Law (Rape) Act 1981, section 2 (1) provides that:

A man commits rape if he has unlawful sexual intercourse with a woman who at the time of the intercourse did not consent to it, and at the time he knows or is reckless as to whether she does or does not consent to it.

Question 13

MENS REA (Rape Conviction)

Answer 13

A man is aware of the absence of consent during the sexual intercourse or reckless as to whether the woman is consenting or not to the act.

Question 14

ACTUS REA (Rape Conviction)

Answer 14

Absence of consent + Carnal Knowledge

Question 15

DEFINITION OF CARNAL KNOWLEDGE
(Legislation)

Answer 15

Section 63 of the “Offences Against the Person Act 1861” provides that Carnal Knowledge is the penetration of the vagina by the penis (gender specific offence).
Carnal Knowledge is complete upon proof of penetration of the vagina by the penis. No need to be deep, any penetration is sufficient. No proof of actual emission of seed is required.

Question 16

Definition of CONSENT

Answer 16

The voluntary, free and informed exercise of the will of an individual who is of the age of consent and with the REQUISITE MENTAL CAPACITY.

Question 17

Fraud as to the nature of the act may arise in what two situations?

Answer 17

a) Complainant consented to non-sexual physical touching, where the individual deliberately goes beyond what was consented to;
b) Complainant is ignorant of sexual matters/nature of the act and is persuaded to have intercourse believing it was some beneficial/medical treatment

Question 18

Subjective Test - Recklessness

Answer 18

DPP v. Morgan

Question 19

PRIOR SEXUAL HISTORY

Answer 19

Section 3 of the Criminal Law (Rape) Act 1981 provides that:
- Expect with the approval of the Judge can the accused person or his representative (barrister) ask about any sexual experience of the complainant person.

WHEN THE PRIOR SEXUAL HISTORY RELATES TO THE TWO INDIVIDUALS THEN IT IS CONSIDERED REASONABLE AND ACCEPTABLE.

Question 20

CORROBORATION REQUIREMENT

Answer 20

Section 7 (1) of the Criminal Law Rape (Amendment) Act 1990 provides that:
- The Judge has the DISCRETION whether or not to give a CORROBORATION WARNING TO THE JURY.

Question 21

DEFINITION OR CORROBORATION

Answer 21

Independent evidence connecting the accused individual with the crime.

Question 22

PUBLICATION OF COMPLAINANT & DEFENDANT

Answer 22

Section 7 of the Criminal Law (Rape) Act 1981 makes it an OFFENCE to publish/broadcast material that identifies the COMPLAINANT in a rape trial.

Section 8 of the Criminal Law (Rape) Act 1981 provides that the accused shall remain ANONYMOUS unless the court permits their identification (up to the point of conviction).

Question 23

DEFINITION OF SEXUAL ASSAULT

Answer 23

Section 2 of the Criminal Law Rape (Amendment) Act 1990 provides that the offence of INDECENT ASSAULT UPON any female or male person.

Question 24

ACTUS REUS OF SEXUAL ASSAULT

Answer 24

Section 2 of the Criminal Law Rape (Amendment) Act 1990 provides that the ACTUS REUS of sexual assault include TWO elements:

a) an assault;
b) circumstances of indecency.

Question 25

Simple Assault (Definition)

Answer 25

SIMPLE ASSAULT:
The Non-fatal Offences Against the Person Act 1997 provides that an individual shall be guilty of assault who, without the person’s consent, intentionally or recklessly, directly or indirectly, applies force or CAUSES AN IMPACT on the body of another, or causes the other to reasonably believe (believe on reasonable grounds) that he or she is likely to be subjected to any such force or impact.

Question 26

Sexual Assault (Definition and Case Law)

Answer 26

Section 2 (1) of the Criminal Law Rape (Amendment) Act 1990 provides that sexual assault refers to an indecent assault upon a male or a female person.

ASSAULT + CIRCUMSTANCES OF INDECENCY (an element of sexual lewdness)

R v. Court

Question 27

MENS REA FOR SEXUAL ASSAULT

Answer 27

Intention or subjective recklessness. The circumstances accompanying it must be capable of being considered by RIGHT-MINDED PERSONS as INDECENT (as provided in the landmark case regarding indecency R v. Court)

Question 28

Defence for a Sexual Assault charge!!

Answer 28

In order to secure a conviction for sexual assault, the prosecution must prove beyond a reasonable doubt that the complaint did not consent to the conduct of the defendant.

CONSENT MAY BE USED AS DEFENDE IN SEXUAL ASSAULT CASES depending on two factors:
a) Age of the complainant;
b) The nature of the assault.

Question 29

DEFENSE ( Sexual Assault)

Answer 29

a) Age of the complainant: consent shall not be a defence to a charge of indecent assault upon a person under the age of 15!

b) Nature of the Assault (simple assault, assault causing harm, assault causing serious harm or AGGRAVATED ASSAULT).
SEE “R v. BROWN” CASE!!

Question 30

AGGRAVATED SEXUAL ASSAULT (CAUSING SERIOUS VIOLENCE)

Answer 30

R v. Brown = In this landmark and controversial english case, the victim’s consent AFFORDED NO DEFENCE TO THE CHARGE due to the nature of the act (arguably, a serious harm)

Question 31

SEXUAL ASSAULT (R v. Wilson)

Answer 31

Controversially, the courts did not find any similarity with the R v. Brown case and consent was indeed used as a valid defence.

Consent did afford the defence to the charge. Husband was not convicted of aggravated sexual assault in the end.