Sexual Offences Flashcards
1
Q
DPP v Morgan [1976]
A
- RAF officer invited 3 of his friends to have sex with his wife whilst he watched
- wife made it clear she was not consenting and sustained physically injuries
- trial judge convicted them because there was no reasonable belief as to consent
- House of Lords held that the belief must be genuine and honest - doesn’t need to be reasonable
- BUT the convictions were upheld because HoL believed that no jury would find that the defendants had an honest / genuine belief
pre-SOA test
2
Q
R (F) v DPP [2013]
Facts, Held, Relevant to?
A
- wife agreed to have sex with her husband as long as he didn’t ejaculate in her
- he agreed, but then did ejaculate in her
- the act of penetration is a continuing act → consent can be revoked at any point after which sex becomes rape
- she asked for prosecution → prosecution was denied / this was appealed after judiciary review and overturned -> hence name R(F)
- relevant to expression of agreement
3
Q
R v H [2005]
Facts, Held, Relevant to?
A
- defendant touched V’s clothes, but made no contact or pressure with her body
- for the purposes of sexual assault, this amounted to touching
- determined test for whether something is sexual:
- 1) Does the jury consider that the touching could be sexual?
- 2) If so, in all the circumstances of the case, does the jury consider that the purpose of the touching was sexual?
4
Q
Attorney General’s Reference (No. 1 of 2020) [2020]
Facts, Held, Relevant to?
A
- D gave V a ‘forceful’ kiss on the train - he stated that it wasn’t sexual assault because he didn’t have sexual motive
- CoA concluded that s.78 leads to 3 options: the act is sexual in nature / the act may be sexual in nature and is sexual because of the circumstances / the act is sexual because of the purpose of D
- the standard for judging whether an act may be sexual in nature is objective -> ‘reasonable person’ test
- if a reasonable person wouldn’t see the act as maybe sexual e.g. shaking hands, then even if D’s purpose is sexual, it wouldn’t be deemed sexual
5
Q
R v Abdulahi [2022]
Facts, Held, Relevant to?
A
- D intentionally touched a nurse’s breast while under a hypoglycaemic state
- defence argued the touch was accidental
- regardless of D’s intention, touching was deemed sexual in this case, by its nature and the circumstances
- reinforces the principle that the sexual nature of an act is primarily determined by its inherent characteristics
6
Q
R v B (MA) [2013]
Facts, Held, Relevant to?
A
- D was convicted of raping his partner. He was a paranoid schizophrenic and believed he had ‘sexual healing power’
- The judge directed the jury to ignore D’s mental illness in determining whether he had reasonable belief in his partner’s consent for the purposes of s1(1) Sexual Offences Act 2003 -> D appealed on misdirection
- Appeal dismissed -> test for reasonable belief as to consent is objective
- mental illness should not be taken into account (unless it falls within legal insanity) -> BUT Hughes LJ highlights that there may be cases where the mental illness should be taken into account, and so should be viewed on a case by case basis e.g. not getting social cues because of low intelligence etc.
- relevant to reasonable belief as to consent
7
Q
R v Jacobs [2023]
Facts, Held, Relevant to?
A
- D was convicted of rape - appealed that his autism (ASD) wasn’t taken into account, as it interfered with his ability to judge whether V was consenting
- Court dismissed appeal -> in this case, there wasn’t sufficient evidence to show that his ASD impaired his ability to understand V’s consent
- emphasized that ASD can be relevant in assessing a defendant’s belief in consent
- mere presence of a mental health condition is not enough
8
Q
Whitta [2006]
Facts, Held, Relevant to?
A
- D met a girl at a party & both agreed to have sex
- D then went into a bedroom and made sexual advances to the person in the bed -> it was the girl’s mother!
- D didn’t have a reasonable belief in consent because V never had the chance to be asked consent
- Consent is needed from B, not a third party
- relevant to reasonable belief as to consent
9
Q
R v Jheeta [2007]
Facts, Held, Relevant to?
A
- D & V were in a relationship - D would send anonymous threatening messages to V
- V wanted to break up, so D pretended to be a police officer and threatened V if she didn’t sleep with him
- s.76 was found to not apply here, as there was no deception as to the nature or purpose of the act, and D wasn’t impersonating someone that V knew
- BUT the conviction was still safe due to s.74 - D knew V didn’t consent
- D took away V’s freedom to choose -> relevant to freedom
- relevant to deceptions
10
Q
R v B [2006]
Facts, Held, Relevant to?
A
- D had sex with V without sharing that he was HIV positive -> he knew at the time
- conviction of rape was quashed
- s.76(2)(a) is not relevant in this case -> failure to disclose an STD does not vitiate consent for the act of sex
- agreement of actual physical act
11
Q
R v McNally [2013]
Facts, Held, Relevant to?
A
- D & V met online, D identified as male online
- D & V met in person, and D orally and digitally penetrated V’s vagina
- D was convicted under s.2 SOA
- s.76 was found to not apply here -> deception as to sexual identity was not deception as to purpose or nature
- Leveson LJ stated consent was vitiated under s.74 -> V didn’t have the freedom to choose because she didn’t know that D was female, and it is “common sense” that sex with a male v female is different
- Court held that a deception as to gender can vitiate consent
- relevant to deception
12
Q
R v Lawrance [2020]
Facts, Held, Relevant to?
A
- D lied that he had had a vasectomy, when he had not
- V got pregnant, argued that his lie vitiated her consent
- Court held that this didn’t fall under s.74 or s.76
- Court states that there is no distinction between an express deception (as in this case) and a failure to disclose (as in R v B 2006)
- Court stated difference between this and Assange & F was that there was no physical condition imposed in this case
- consequences (e.g. pregnancy) are not considered - can’t vitiate consent under s.74 -> like for R v B
13
Q
R v Williams [1923]
Facts, Held, Relevant to?
A
- D was a singing coach for V and told her that a certain act would improve her breathing -> it was just sex
- Court held that V’s consent was vitiated due to the deception as to the nature and quality of the Act
- pre SOA 2003 case; but would fall under s.76(2)(a)
- relevant to capacity
14
Q
Assange v Swedish Prosecution Authority [2011]
Facts, Held, Relevant to?
A
- V made clear she would only consent to sex with a condom, but D didn’t wear one
- Court held that this case wouldn’t fall under s.76, as there was no deception as to the nature or purpose of act
- BUT it would fall soundly into s.74, as V did not consent to sex without a condom and made this clear -> following SOA
- Limited consent
- relevant to expression of agreement
15
Q
R v Tabassum [2000]
Facts, Held, Relevant to?
A
- D went door to door telling women he was doing a breast cancer survey and touching the breasts of 3 women to show them how to check for cancer
- D did not have medical training or qualifications
- Court held that this was a deception as to the nature and quality of the act
- the women consented to medical touching, not sexual touching
This is a pre-SOA case; now you would look at “nature and purpose” rather than quality
16
Q
R v Green [2002]
Facts, Held, Relevant to?
A
- D posed as a doctor and deceived male patients into sexual touching, stating it was necessary to collect semen - made them masturbate
- Court upheld conviction of indecent assault
- consent can be vitiated when there is a deception as to the purpose of the act
- medical check-up vs sexual gratification
- pre-SOA case
- relevant to deception
17
Q
R v Devonald [2008]
Facts, Held, Relevant to?
A
- D’s daughter got dumped by V
- D made a fake online persona as a girl, got involved with V, made him masturbate online
- Court held that even though V knew it was for his own sexual gratification, it was also for the gratification for what he thought was a woman -> it was actually for his humiliation
- Court held that this was enough of a deception as to the purpose of the act
- This case also highlights that, for s.76(2)(b). if a person known personally to the victim pretends to be someone the victim doesn’t know, the provision still doesn’t apply
- this case departed from Jheeta, expanding the meaning of s.76
- Bingham then rejected this case
- relevant to deceptions
18
Q
R v Bingham [2013]
Facts, Held, Relevant to?
A
- D got his girlfriend (V) to share topless photos with an online persona, then threatened her with blackmail if she didn’t continue. V went to D to help her, D told her he’d got rid of the online persona but made a new pseudonym and threatened her with blackmail about murder if she didn’t perform sexual acts online
- V went to police eventually
- Court held that this case would NOT fall under s.76 -> s.76 must be strictly construed
- “if there is any conflict between Jheeta and Devonald, we would unhesitatingly follow Jheeta”
- V was aware that D’s purpose was sexual gratification
- BUT Court highlighted that prosecution had a strong case for no consent under s.74 -> if she was blackmailed she didn’t agree freely
- D took away V’s freedom to choose
- relevant to deception
19
Q
R v Christopher Matt [2015]
Facts, Held, Relevant to?
A
- D, a plumber. claimed to be re-making a film
- V responded to advert, came to audition, D got V to perform sexual acts as part of audition
- V believed the purpose was for the audition, but it was for D’s sexual gratification
- Court held that there was deception as to purpose here, and it fell under s.76 therefore D was convicted
20
Q
R v Malone [1998]
Facts, Held, Relevant to?
A
- D had sex with a 16 year old girl who was drunk
- due to her being drunk, she didn’t resist
- Court held that a failure to resist is not agreement - V never had the option to agree, she was too drunk to show resistance or consent
- relevant to agreement by choice
21
Q
MC v Bulgaria (2005)
Facts, Held, Relevant to?
A
- found that Bulgarian laws were incompatible with ECHR with regards to rape
- active resistance had been required to indicate a lack of consent -> this needed to be changed
- a failure to resist is not agreement
relevant to agreement by choice
22
Q
R v Linekar [1995]
Facts, Held, Relevant to?
A
- V was a prostitute and agreed to have sex with D for £25, but D didn’t pay afterwards
- D was initially convicted of rape -> conviction quashed
- the deception as to the payment was not linked to the nature or quality of the act, nor was it linked to the identity of D
- pre-SOA case, but Jheeta highlights that under SOA, this case still wouldn’t result in a conviction, as there was no deception as to purpose of the act
- relevant to agreement of actual physical act
23
Q
R v Lee Gary Brown [2019]
Facts, Held, Relevant to?
A
- D slept with a 12 year old who claimed to be a 16 year old
- When D found out, he was so disgusted that he turned himself in to the police
- even the judges were convinced that the 12 year old could pass as 16, but it doesn’t matter whether the belief is reasonable because age of consent is 13
- capacity to choose
24
Q
R v A (G) [2014]
Facts, Held, Relevant to?
A
- ‘visceral rather than cerebral’
- you need to assume that a person has capacity until it is proven otherwise -> don’t want to be paternalistic
- the person needs to have a basic understanding of the nature and purpose of the act
- Mental Capacity Act 2005, ss.2 and 3 should be used in conjunction with SOA ss.30-33 to see if a mentally impaired person has the capacity to choose
- impairment of rational capacity
25
R v Bree [2007]
## Footnote
Facts, Held, Relevant to?
- D & V are part of a group of friends
- V got really drunk, D was taking care of her, ended up touching her sexually, taking her clothes off, they had sex
- drunken consent is still consent - we should be reluctant to withdraw people's consent
- V didn't remember the whole night -> memory loss doesn't = loss of capacity to consent
- courts couldn't prove beyond reasonable doubt that the complainant hadn't consented / unreasonable belief as to consent
## Footnote
- relevant to capacity
26
R v Olugboja [1982]
## Footnote
Facts, Held, Relevant to?
- D and L (men), V and K (women) met at a disco
- men offered women a ride home -> L rapes K and V sees this
- D then had sex with V, who didn't resist -> pre-SOA you didn't need reasonable belief
- Court held that this was submission, not consent -> lack of physical resistance does not equal consent
## Footnote
- relevant to freedom to consent
27
R (Monica) v DPP [2018]
## Footnote
Facts, Held, Relevant to?
- police officer (D) went undercover in a environmentalist group - started relationship with V
- V held that her consent was vitiated due to deception - she would never have started a relationship if she'd known he was an officer
- Court held that the deception as to his identity did not vitiate V's consent to sex in this case -> he wasn't impersonating someone she knew
28
R v Kirk [2008]
## Footnote
Facts, Held, Relevant to?
- V (14) went to D having not eaten in a while and in a desperate situation
- D had sex with her and then gave her £3.45 for food
- D had been in the room when his brother raped V, and he'd sexual assaulted her before -> he knows how desperate she is
- Court held that there was a difference between willing submission and consent -> what was in her mind - did she consent to sex or did she submit for the money
- Pill LJ argued that "willing submission" is distinct from consent, but should be avoided as a phrase as it can be too easily confused with consent
## Footnote
- relevant to freedom
29
R v Ciccarrelli [2011]
- D sexually assaulted V whilst she was sleeping
- D argued that he had reasonable belief that she would've consented
- D and V were basically strangers, the belief was based on a single advance she had made earlier
- Court held that this was not a reasonable belief and so the question didn't need to be left to the jury
- under s.75 SOA - evidence of reasonable belief must be realistic before it is left to jury to decide
## Footnote
- relevant to expression of agreement
