Sexual Offences Flashcards
how was rape defined in Lord Advocate’s Reference (No1 of 2001)
Rape defined as a man having sexual intercourse with a woman without her consent
what was established in Para 44
- AR of rape is constituted with the man having sexual intercourse with the woman without her consent
- For females under 12, or for any who are incapable of giving consent, the absence of consent should be presumed
- MR on part of the man present where he knows that the women is not consenting, or is reckless as to whether she is consenting
what does the MR of rape include, pre Sexual Offences Act 2009
- includes the intention to have intercourse with the woman without her consent
- Absence of a belief that she was consenting is an essential element in it
what are some key characteristics of Sexual Offences Act 2009
- Modernised the Scots law of sexual offences replacing common law offences with statutory provisions
- Created a border, statutory definition of rape
- Sets out an offence of sexual assault by penetration
- Creates specific offences in relation to the rape and sexual assault of children
- anyone under the age of 13 is unable to consent to sexual activity
how was rape defined in S1(1) Sexual Offences Act 2009
If a person, with their penis
a. Without another person consenting and
b. Without any reasonable belief that B consents,
Penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B, then A commits rape
what is the AR for sections 1, 2 and 3 offences
actions carried out with either a lack of consent by the V, or a lack of reasonable belief that the V was consenting
what is the MR for sections 1, 2 and 3 offences
intention to carry out the act or recklessness to the consequences
what was the first reported rape case under sexual offences (Scotland) Act 2009
Mutebi v HMA 2014
case facts of Mutebi v HMA 2014
Complainer testified that she remembered coming to from unconsciousness to find the accused on top of her, sexually penetrating her
She couldn’t remember if she agreed to have sex with him, but when realised what was happening, she said no and tried to push him off
A was found guilty of rape and appealed
Appeal Decision;
Conviction was overturned on appeal
Insufficient corroboration of lack of consent, or of the appellant’s lack of reasonable belief in consent
Case undermines purpose of s. 15 of Act – withdrawing consent should be recognised
how did the Sexual Offences (Scotland) Act 2009 change the mens rea
Changed the requirement from the common law offences re the mens rea from the absence of an honest belief to the absence of a reasonable one
what was held in Maqsood v HMA 2018
Whether an accused had a reasonable belief that the V was consenting is an inference to be drawn from the proven facts
case facts of Gow v HMA 2019
Appeal against a conviction for rape raised the issue of whether in the 2009 act, a person can consent in advance to having sexual intercourse whilst asleep
A lodged defence of consent
Appeal refused, conviction was upheld
Consent given at a time far removed from the alleged criminal conduct cannot be used as a defense under the law
Section 14 explicitly states that a person cannot consent to actions while asleep or unconscious, and in such cases, there can be no reasonable belief that consent was given.
what did Lord Gill state in Webster v Dominick 2005 about public indecency
- If public indecency is seen as a public order offence, questions about the depraving and corrupting effects of the conduct complained of are at most of indirect relevance
- As in the English offence of public decency, it’s sufficient for liability that, on an objective assessment, conduct complained of should cause public offence
how is the element of public indecency satisfied
- If the indecent conduct occurs in public, or if members of public can see it
- Conduct needs to affront public sensibility – this is to be decided by reference to the circumstances of the case and the changing social standards
mens rea of indecent conduct
- intention to engage in indecent conduct that will affect minds of public OR
- Recklessness as to whether one is engaging in indecent conduct that will effect the minds of the public
