Sexual Offences Flashcards
Ashworth’s 7 objectives of the Sexual offences act 2003
- Bring law in line with modern issues
- Create gender-neutral offences
- Improve clarity
- Clarify the meaning of consent
- Protect the most vulnerable
- Ensure that penalties reflect seriousness
- Improve conviction rates in rape cases
Sexual offences amendment act 1976
Rape: Old Law
A man must have unlawful intercourse with a woman without consent
Unlawful essentially meant extra-marital
R v R
Made marital rape unlawful
Criminal Justice and Public Order Act 1994
Rape: Old Law
codified R v R
Ensured D’s who claim they were brought up in another country where marital rape is lawful have no defence
A [2012]
Rape
D’s who claim they were brought up in another country where marital rape is lawful have no defence- rule still exists under 2003 legislation
Cogan
Rape: Penetration by a penis
D was convicted as a secondary party at a time when in law he could not have been principle offender
In modern law this can be extended to women who otherwise engage in the act
Sexual Offences Act 1956
Rape: Old law
Mens rea requirement was about intent or recklessness
Morgan
Rape: Old Law
Mens Rea
Trial judge tried to introduce objective concept of reasonable grounds for belief the V was consenting.
However this was rejected as logically inconsistent with the current mens rea
R v B
Rape: Actus Reus
D had serious delusions due to paranoid schizophrenia, insisted on sex with his partner and she, having said no, submitted.
CA said the jury could not consider if his reasonable belief included his paranoia
Acknowledged that the new law deliberately departs from the old subjective model
Doody
Rape: Actus Reus
The judge can point out to the jury that some things they may believe are just myth
R v H
Definition of ‘sexual’
D grabbed woman bum and said ‘fancy a shag’
Because of the place he touched her and his words, this was sexual assault.
Court
Sexual assault: Old Law
Common assault in indecent circumstances
Must be inherently indecent conduct
Grout
Causing a person to engage in sexual activity without consent
Sexual activity may extend to sexual conversation
CPS guidance: Causing a person to engage in sexual activity without consent
Suggests that female ‘rapists’ be charged with this offence
R v Flattery
s76 Conclusive Presumptions: Deception as to nature
D persuaded naive victim he was performing a surgical operation on her, this was the only reason she submitted
R v Williams
s76 Conclusive Presumptions: Deception as to nature
Singing teacher persuaded V that it was a form of breathing exercise
R v McNally
s76 Conclusive Presumptions: Deception as to nature
Girl posed as a boy on the internet and engaged with another girl. They met up and acts took place between them charged as s.2 assault by penetration.
CA appears to think that this deception as to gender was not a deception as to nature of the act- the issue of s76 was never even raised. BUT it was (later) said that gender goes to the nature of the act
R v Jheeta
s76 Conclusive Presumptions: Deception as to Purpose
V knew she was having intercourse with D, but he had tricked her into believing that the police regarded it as her duty. CA held this could not amount to a deception as to purpose- conclusive presumptions cannot arise merely because the defendant was deceived in some way by lies, these will rarely go into the nature/purpose of intercourse.
Assange
s76 Conclusive Presumptions: Deception as to Purpose
A case where a D lied about his use of a condom would not fall within a conclusive presumption
R v Devonald
s76 Conclusive Presumptions: Deception as to Purpose
Wider interpretation outside rape cases
D had grudge against his daughters ex-boyfriend. Posed as a girl on the internet and got boyfriend to masterbate on camera in order to humiliate him (s.4 Causing another person to engage in a sexual activity without consent case)
Was held this could be a conclusive presumption: The victim thought the act was about sex when actually it was about humiliation, identity.
R v Piper
s76 Conclusive Presumptions: Deception as to Purpose
Wider interpretation outside rape cases
D advertised for bikini models, but was a scam and he just wanted to film and touch the girls
CA was happy to see this as a case of deception as to purpose
R v Elbekkay
s76 Conclusive Presumptions: Impersonating someone known personally to the complainant
Recognised the fact about consent being specific to a person
R v White
S75 Evidential Presumptions: Threshold for rebuttals
Must be some foundation in the evidence provided by the defence- must not be merely speculative or fanciful
Basic Consent: Difficult Cases
- D’s capacity/ ability to choose is inhibited by drinking, drugs, disability, immaturity
- V makes a mistake about an attribute of D because D positively practices a deception on V
- V makes a mistake as to attribute of D who fails to disclose truth
- V submits because they are dependant on D
R v Bree
Consent and intoxication
CA held that a drunken consent that V later regrets is still consent.
However it is possible for V to temporarily lose capacity to choose through drink, and so intercourse on that occasion would be rape.
Jury should be asked: Did she have capacity to choose?
R v Hysa
Consent and Intoxication
Drunk girl got into a car with strangers, one of them had sex with her minutes later.
Held:
V was not obliged to say no to penetration
V’s failure to recall what happened because of drink is not fatal
Jury can take into account the whole picture: Lies told by D, how likely/unlikely it is that V would have actually consented in that situation.
R v C
Consent and Mental Disorder
Victim afraid of the D to the point of being prepared to agree to a sex act with him where, had she been free to choose, she would have said no
HL held the question is whether in the state she was in that day she was capable of choosing whether to agree to the touching demanded of her by D
Capacity is both person and situation specific
R v EB
Consent, Deception and Mistake
D knew he was HIV positive but did not tell V
CA held this is not rape as there is still consent to the intercourse itself
R (On the application of F) v DPP
Consent, Deception and Mistake
D and complainant agree to have sex, D promised not to ejaculate insider her, then deliberately did so
Held this was capable of negating her consent- she had specifically not consented to this part of the act.
R v Malone
There is no burden no the complainant to manifest their non-consent
R v Olugboia
Doyle
Consent and Submission:
Jury should be directed that consent be given its ordinary meaning and, if necessary, that there is a difference between consent and submission
The dividing line between consent and submission in a given case is for the jury to decide
Confirmed this principle still applies under 2003 act
Statutory basis: Sexual offences against children under 13
S5-8 Sexual Offences Act 2003
Statutory basis: Consent and mental disorder
S 30 SOA 2003
Statutory Basis: The meaning of consent
S 74 SOA 2003
Statutory Basis: Evidential Presumptions of consent
S 75 SOA 2003
Statutory Basis: Conclusive presumptions of consent
S 76 SOA 2003
Statutory Basis: Sexual Assault
S 3 SOA 2003
Statutory Basis: Definition of ‘Sexual’
S 78 SOA 2003
Statutory Basis: Assault by Penetration
S2 SOA 2003
Statutory Basis: Rape
S1 SOA 2003
R v G (2009)
Sexual offences against children under 13: similar age of D and V
15 year old boy had sex with a 12 year old girl
Sought to raise issues under ECHR: Art 6 breach of right to fair trial, Art 8 breach of right to privacy
Both courts held imposing strict liability legitiate: purpose of protecting the victim
However Supreme court was divided
Minority thought s5 could be a disproportionate response in law
Thought there should be an alternative, lesser offence
Walker
S8: Causing/inciting a child under 13 to engage in a sexual activity
Inciting can mean merely encouraging the child
Therefore D can be convoked even if the child does nothing
Statutory Basis: Sexual Offences Against Children Under 16
S 9-16 SOA 2003
Statutory Basis: Sexual Offences Against Children Under 16 by under 18s
S 13 SOA
CPS Guidance: Sexual Offences Against Children Under 16 by under 18s
Response to criticisms of law being too heavy handed
The overriding concern is of protecting children not punishing them unnecessarily
Should consider elements of the relationship itself in deciding whether to prosecute:
Age and understanding of D
Disparity in act between D and V
Type of conduct
Exploitation/ manipulation?
Maturity of the parties
Rape: AR
Intentional penetration of the vagina, anus, or mouth of another person which his penis
V does not consent to penetration
Rape: MR
D does not reasonably believe that V consents
New Mens Rea of rape: evaluation
- still looks very closely at the complainants behaviour in deciding the reasonableness of the D’s belief
This therefore fuels unreasonable social attitudes about the victim ‘asking for it’ - More likely that the D’s previous convictions and character will come out in modern trials, which may help towards conviction.
- Limits have been imposed on cross-examining about V’s previous sexual history
Evidential Presumptions: Evaluation
- Threshold for rebuttals is a low one
- Concentrates the mind of the jury and the defence team on the fact that they have to do something to persuade on this issue- helps to force D to give evidence about his side of the story.
- Would it be better to put a burden of proof on the defence?
Aimbit of sexual offences against children under 16
Aimed at where D is an adult, V is age 13-16 and V has consented in law
If it is clear there is no consent, it is likely that they will prosecute for the more serious offence of s1 rape.
If V is under 13, will tend use s5-8 (however it is possible to use these offences too)
cover a broader range of sexual activity than those relating to adulty:
