sexual offences Flashcards
marital rape
r v r
where are all sexual offences reported?
sexual offences act 2003, promotes protection non-discrimination and justice to the victims
consent in SOA 2003
sets out consent as sexual, reasonable belief, rape being penile penetration without consent, sexual assault being sexual touching without consent
what factors are considered in determining consent?
r v Mcfall
structure of consent in SOA 2003
s 74 general definition of consent, s 75 situations where there is an evidential presumption against consent (D can bring evidence V consented, question of fact for jury to answer), s 76 situations where there is a conclusive presumption against consent (question of law for the judge)
s 76 (2)(a) - deception as to nature or purpose
the D intentionally deceived the complainant as to the nature or purpose of the relevant act
s 76(2)(b) - deception as to identity
the D intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant
nature and purpose
r v flattery (medical exam) and r v Williams (improve singing voice)
nature i.e., basic mechanics
r v dica ( non-disclosure of HIV) and r v cuerrier
purpose
r v linekar (non-payment of a sex worker) and r v devonald (solicited V to masturbate on webcam)
identity s 76(2)(b)
has to be someone personally know to V, deception as to attributes isn’t enough
- r v elbekkay (pretended to be V’s boyfriend) and r v b (sexual infection is an attribute of D)
presumptions under s 75
are evidential and can be rebutted with evidence
what happens if facts/evidence are shown by prosecution that raises presumption?
D has the burden of bringing evidence to rebut, D’s belief in consent insufficient to rebut presumption alone (r v cicerelli), need to show the context doesn’t undermine consent not that it doesn’t exist
If presumption is rebutted
prosecution need to show lack of consent under s 74
the presumptions s 75(2)
use of threat of violence against V, use or threat of violence against another, V unlawfully detained D not, V asleep or otherwise unconscious, V has physical disability that prevents communication, involuntary administration of drugs that stupefy or overpower V
violence presumptions s 75(2) - use or threat of violence against V
D must be aware of violence, immediate violence
violence presumptions s 75(2) use or threat of violence against another
V fears violence was being used or would immediately be used against another, covers situations if e.g., D threatens V child to gain consent, very broadly drafted
definition of consent - s 74
consent exists if V agrees by choice and has freedom and capacity to make that choice
- r v Watson
- no need to show struggle or resistance for lack of consent
- freedom - coercion and deception
- capacity - mental
consent - freedom
- r v jheeta = coercion, submission and intimidation
- deception is not treated consistently, deception as to physical sexual acts will undermine consent (Assange case (condom use), r (f) v DPP (internal ejaculation), r v mcnally (gender)), deception as to context will not undermine consent (Mcnally (not disclosed HIV status) and r v lawerence (set out sex/context distinction)), external life pressures generally not undermine consent (exceptions possible - r v Kirk (sex in exchange for money to buy food))
consent - capacity
v’s capacity, specific to V and the choice that was made
- r v bree (V heavily intoxicated)
- r v c (had a mental disability)
2 part test from R v C for a persons capacity relating to their consent
they must be able to understand the information relevant to making it and to be able to weigh that info in the balance and arrive at a choice
definition of sexual - s 78
OBJECTIVE TEST - REASONABLENESS TEST
- something is sexual if a reasonable person would consider that whatever 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 PURPOSES OF ANY PERSON IN RELATION TO IT (or both) it is sexual
2 part definition to sexual - s 78
its nature or its circumstances and/or purpose
r v George = principles behind s 78 test for “sexual acts”
removed shoes of girl for own pleasure, was not held to be sexual, acquitted for claims of sexual harm, D purpose in acting was sexual, conduct might be
r v court - principles behind s 78 test for “sexual acts”
D put 12 year old over knee and slapped her bum, said had a fetish, charged with sexual assault, conviction upheld
second part of the test for act being “sexual” s 78
if something may be sexual jury looks at circumstances/purpose
second part of the test for act being “sexual” s 78 - R v h
successful application, accosted V as she walked across field, asked if she wanted to shag and pulled her trousers down to try, convicted of sa, sexual act and D purpose proven
SOA 2003 - s1 Rape
D commits an offence if he intentionally penetrates the vagina, anus or mouth of V with his penis, D doesn’t consent to penetration, D doesn’t reasonably believe V consents
- reasonable belief to be determined by looking at all the circumstances
- a person guilty is liable to imprisonment for life, must be on indictment and in front of jury
SOA 2003 - s2 assault by penetration
if D intentionally penetrates vagina or anus of V with a part of his body or anything else, penetration is sexual, V doesn’t consent, D doesn’t reasonably believe V consents
- reasonable belief to all circumstances
- a person is guilty they are liable to imprisonment for life, conduct crime no result required
AR penetration - s.1 and s.2
mouth is excluded from s.2, doesn’t exclude penis can act as a fallback to rape if V unsure they were, increased risk of disease spreading and pregnancy
penetration - s 79 SOA 2003
from when the penis enters the body to when it is taken out, continuing act from entry to withdrawal, need only be slight, cannot use consent for 2 things by giving it once, part of body includes surgically manufactured
AR: Penetration is sexual s2
only applies to assault by penetration, whether the penile penetration is sexual is not part of the definition of rape
- r v hill - D and V lived together, argument where D pulled V’s trousers down, inserted fingers, assault by penetration, s 78 test is objective whether reasonable person
AR: V doesn’t consent
SOA 2003 gives first legal definition of consent
MR: lack of reasonable belief
DPP v Morgan - D encouraged men to have intercourse with wife, her resisting would’ve been enjoying and consenting, all charged with rape, stated they had her consent, V husband not convicted.
why is subjective MR a problem
conduct usually without witnesses, significance of the harm and violation involved, usually easy to establish consent
MR: reasonable belief - lacking in it
- D lacks reasonable belief if intends to lack V to lack, V lacks. consent, reckless as to V’s constant, doesn’t consider consent at all
MR: reasonable belief - all circumstances taken into account
- various things to be considered, D’s age sexual experience mental capacity, V’s dress and conduct, steps taken by D.
evidential presumption
will apply unless they bring rebuttal evidence to the trial
conclusive presumption
consent does not exist due to fraud, D is therefore presumed to hold the required MR of lack of belief
sexual assault - s.3 of SOA 2003
an offence if he intentionally touches another person, the touching is sexual, V doesn’t consent to the touching, D doesn’t reasonably believe V consents
sexual assault - s.3 of SOA 2003 sentencing
if a person is guilty/liable they are to be imprisoned not exceeding 10 years
what kind of crime is sexual assault?
a result crime, doesn’t criminalise specific conduct, no set way they touch the V
AR (SEXUAL ASSAULT): Touching (s 79)
any part of the body, with anything, through anything, V need not be aware of it
r v h - sexual assault
D grabbed V’s clothing, didn’t touch anywhere else, touched her through something, no need for skin-to-skin contact, merely touching clothes is touching
AR (SEXUAL ASSAULT): V doesn’t consent
consent defined in ss74-76
AR (SEXUAL ASSAULT): Touching is sexual
s 78, by its nature sexual or it might be sexual
