Sexual Offences Flashcards
Rape act?
S2(1) criminal law (rape) act 1981
When does a man commit rape?
Has unlawful sex with woman who at the time does not consent / knows she does not consent or is reckless
Penetration?
S1(2) rape act: deemed complete upon proof of penetration, not necessary to prove emission
AG v Dermody 1956 (penetrated vagina a wee bit)
Fraud?
Fraud as to identity or nature may nullify consent
Dpp v C 2001: knowledge or understanding of facts material to the act is necessary for consent to be voluntary
Fraud as to attributes?
Does not vitiate consent
Papadimitropolous v R 1957 (marriage)
McAuley: fraud as to essential element of act with which law is concerned
Fraud as to nature of act?
Arises in two ways:
Person goes beyond what was consented to
Complaint is ignorant of sexual matters
R V Williams 1923 (singing)
Presence of fraud?
Not enough to ground rape charge
R v linekar 1995 (prostitutes)
Resistance?
Not necessary to show
S9 rape act
When does question of disclosure arise?
Individual engaged in unprotected sec without informing of disease
R v Cuerrier 1998: failure to disclose vitiated / true consent would be to have intercourse with HIV+ partner
R v Dica 2004: did not vitiate consent (orbiter) held not been defrauded as to nature of act
Charleton suggests might be covered under s4 non fatal offences
Intoxication?
R v Bree 2007: found voluntary consumption of alcohol did not by itself remove capacity to consent
However if capacity to choose wether to have sex was lost she was not consenting
Withdrawal of consent?
Man guilty of rape if he continues after realising woman no longer consenting
R v Kaitamaki 1984 (became aware only after penetration)
Prior sexual history?
S3 rape act 1981: no evidence shall be adduced at the trial about any sexual experience of the complainant with any person
Sexual Assault?
S2(1) rape act 1990: offence of indecent assault upon male/ female shall now be known as sexual assault
Elements of actus reus of assault?
Assault & circumstances of indecency
Sexual assault: assault?
Carries same meaning as S2 of NFAP act 1997
Fairclough v Whipp 1951 (invitation to touch penis)
Sexual Assault: Indecency?
R v Court 1989: ( buttock fetish)
Would right minded persons think was indecent?
Sexual assault: men’s Rea?
Intention / recklessness
Test (R v Court):
Intentionally assaulted
Reasonable man would think indecent
Accused intended to commit assault
Sexual assault: Consent?
May be defence
Depends on age & nature of assault
Sexual assault: Age?
S14 criminal law amended act 1935:
Consent shall not be defence to charge upon person under 15
DPP v WN 2003: A child cannot give any valid or true consent to such abuse
Sexual Assault: Nature of assault? (Consent)
S2 NFAP Act 1997 allows for defence of consent
R v Brown 1994 (discovered by chance)
HOL found not in public interest to assault for no reason & in the absence of such reason victims consent afforded no defence
R v Wilson 1996 (buttocks) COA quashed conviction
Aggravated sexual assault?
Gender neutral
S3 Rape act 1990: SA that involves serous violence or threat of or is such to cause injury, humiliation or degradation of grave nature
S4 rape?
Penetration of mouth / anus by penis
Penetration of vagina by object
SO against mentally impaired
S5 1993 Act: person who has / attempts sex / buggery with mentally impaired person other than marriage
CC v Ireland 2006?
Believed complainant over 15 & submitted reasonable belief of age would form part of defence if not for prohibition
S1(1) criminal law amendment act 1935 deemed repugnant: provision which imposed person without mental guilt to max sentence failed to respect liberty or dignity of individual
