Sexual Offences Flashcards
Explain case of Kaitamaki
If consent is withdrawn after penetration begins, it can still become rape if the penetration continues.
For when a woman makes withdraws consent during the act but a man continues.
What is the definition of consent as laid out in the statutes
“agree[ing] by choice, and ha[ving] the freedom and capacity to do so”
What are the rules regarding consent
- C must have the necessary capacity to consent
- Giving of consent is positive and provisional
- Consent can be revoked any time during sexual act
- **Pretending to consent is not consent ** (must be consent in the victim’s mind, not in their actions) : McFall [1994] V pretending to want sex out of fear
- Deception as to gender does not count as consent McNally
s.74
Freely choosing consent: pressure and manipulation
**Olugboja **
D lured two teens, drove them to his home. Both fled; one was caught and raped. The second was forced inside, made to undress, and had non-consensual sex. Court considered coercion: fear from abduction, friend’s rape, and inability to freely consent under duress.
Difference between consent and submission (although reluctant acquiesence is allowed)
Kirk [2008]
- D abused her in the past offered V money for food (she was homeless). NOT CONSENTING.
s.74
Consent and Deception
- **Not revealing HIV status does not amount to lack of consent (according to R v Brown)
**
Assange - Deception of wearing a condom (no consent)
- **R v (F) v DPP - Breaking agreement to withdraw before ejaculation can constitute rape.
** - McNally Deception as to gender - Vitiates consent (meeting in person pretending to be a man having sex)
Think would they have consented given full knowledge
s.74
Which case could be distinguished from R v Assange
However, R v Lawrence
D told v he had a vasectomy but did not actually and she got pregnant. V was explicit she would not have had sex with him otherwise as she did not want to get pregnant. Consent undermined here? NO this is distinguished from Assange.
Where might s.75 operate
Include **rebuttable **presumptions
1.) Where it is presumed C did not consent
2.) OR D did not reasonably believe C consented
Gives a full list of scenarios to check
Examples of cases falling under s.75
- **R v Ciccarelli **
V showed interest night before but then went to sleep and D attempted to engage sexual activity with her while asleep
- R v White
Woman gave clear permission before falling asleep. Amounts to consent
Consent and Self-Induced Toxication
**Bree [2007]
**
If someone is so drunk (or affected by anything else) that they can’t make a clear choice about having sex —
They cannot legally give consent.
So, if sex happens when someone is in that state → it can be rape, depending on what the other person believed.
But…
If someone has had a lot to drink, but is still able to make decisions — and they agree to have sex — Then it is consent, and it isn’t rape.
Steps to follow for consent outline?
Does s.76 apply?
IF NOT
Does s.75 apply?
IF NOT
Does s.74 apply?
Section 76 Cases
**Nature **- Williams [1923] (singing teacher) - deception as to the nature of the act. “Breathing lessons” when actually touching their breasts. It was not going to help their singing
**Purpose **- The purpose of the act is sexual which the D cannot tell
1.) Green (doctor) doing examinations when it is just sex
2.) Pipe (bikini measuring)
3.) Tabassum (bogus “breast exams”)
Exceptions to s.76
Exceptions Jheeta [2007] - If someone deceives you into thinking you are a celebrity and they are not (this will not fall under s.76). This does not necessarily mean you will not be convicted of something else. The deception (as in the circumstance above) has to go to the nature or purpose of the intercourse.
This case draws the scope of s76.
Definition of Nature or Purpose: Jheeta does not define the word purpose. If the courts decide they could make it wife, which could be dangerous
Facts of Jheeta
Deception method: D sent anonymous texts impersonating police, threatening legal action (fines/arrest) if complainant ended the relationship or refused sex.
Impact on consent: Complainant believed threats were genuine legal obligations, removing her freedom to choose under duress (Section 74).
Legal analysis:
Section 76 did not apply: Deception related to circumstances (legal threats), not the nature/purpose of the sexual acts.
Section 74 applied: Consent invalidated as she lacked freedom to agree by choice due to coercion and deception.
Limits scope of s.76
Other example cases which fall short of s.76
Devonald: V was not tricked as to the nature or purpose. The purpose was revenge. Whereas nature and purpose should really be about the sex
Linekar: Man promises to pay sex worker but never pays. She is not deceived about the nature or purpose of the act. Agreement attained by promise of money is a secondary motive
Bingham: D uses two false identities to cause his gf to perform sexual acts over the internet. D knew of that sexual activity so not deception.
Sexual
George - removing a shoe = sexual (foot fetish)
H [2005] - . Pulling clothing: D and V walk on a field, he pulls hertrousers and ask if she wants to have sex, considered sexual
s.78
Rape Actus Reus
Penetration
Without Victims consent
Mens Rea Rape
- Intent to Penetrate
- **Lack of Reasonable Belief in Consent*
- Required knowledge or recklessness
- Honest but mistaken belief in consent (or obliviousness)would acquit, even if unreasonable!
- Do not forget Rape Myths
**3. Would the reasonable person, in those circumstances, believe that the victim was consenting? **
R v B [2013] - V thought D had healing powers through sex. NO CONSENT, she was scizophrenic so consider circumstances
Examples of Mens Rea for Rape
D knows V is not consenting
*D knows V might not be consenting
*D does not consider consent at all
*D believes V is consenting, but that belief is unreasonable
