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Criminal Law > Sexual Offences > Flashcards

Sexual Offences Flashcards

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1
Q

Ashworth’s 7 objectives of the Sexual offences act 2003

A
  1. Bring law in line with modern issues
  2. Create gender-neutral offences
  3. Improve clarity
  4. Clarify the meaning of consent
  5. Protect the most vulnerable
  6. Ensure that penalties reflect seriousness
  7. Improve conviction rates in rape cases
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2
Q

Sexual offences amendment act 1976

A

Rape: Old Law

A man must have unlawful intercourse with a woman without consent
Unlawful essentially meant extra-marital

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3
Q

R v R

A

Made marital rape unlawful

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4
Q

Criminal Justice and Public Order Act 1994

A

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

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5
Q

A [2012]

A

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

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6
Q

Cogan

A

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

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7
Q

Sexual Offences Act 1956

A

Rape: Old law

Mens rea requirement was about intent or recklessness

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8
Q

Morgan

A

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

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9
Q

R v B

A

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

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10
Q

Doody

A

Rape: Actus Reus

The judge can point out to the jury that some things they may believe are just myth

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11
Q

R v H

A

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.

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12
Q

Court

A

Sexual assault: Old Law
Common assault in indecent circumstances

Must be inherently indecent conduct

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13
Q

Grout

A

Causing a person to engage in sexual activity without consent

Sexual activity may extend to sexual conversation

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14
Q

CPS guidance: Causing a person to engage in sexual activity without consent

A

Suggests that female ‘rapists’ be charged with this offence

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15
Q

R v Flattery

A

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

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16
Q

R v Williams

A

s76 Conclusive Presumptions: Deception as to nature

Singing teacher persuaded V that it was a form of breathing exercise

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17
Q

R v McNally

A

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

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18
Q

R v Jheeta

A

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.

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19
Q

Assange

A

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

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20
Q

R v Devonald

A

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.

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21
Q

R v Piper

A

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

22
Q

R v Elbekkay

A

s76 Conclusive Presumptions: Impersonating someone known personally to the complainant

Recognised the fact about consent being specific to a person

23
Q

R v White

A

S75 Evidential Presumptions: Threshold for rebuttals

Must be some foundation in the evidence provided by the defence- must not be merely speculative or fanciful

24
Q

Basic Consent: Difficult Cases

A
  1. D’s capacity/ ability to choose is inhibited by drinking, drugs, disability, immaturity
  2. V makes a mistake about an attribute of D because D positively practices a deception on V
  3. V makes a mistake as to attribute of D who fails to disclose truth
  4. V submits because they are dependant on D
25
Q

R v Bree

A

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?

26
Q

R v Hysa

A

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.

27
Q

R v C

A

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

28
Q

R v EB

A

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

29
Q

R (On the application of F) v DPP

A

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.

30
Q

R v Malone

A

There is no burden no the complainant to manifest their non-consent

31
Q

R v Olugboia

Doyle

A

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

32
Q

Statutory basis: Sexual offences against children under 13

A

S5-8 Sexual Offences Act 2003

33
Q

Statutory basis: Consent and mental disorder

A

S 30 SOA 2003

34
Q

Statutory Basis: The meaning of consent

A

S 74 SOA 2003

35
Q

Statutory Basis: Evidential Presumptions of consent

A

S 75 SOA 2003

36
Q

Statutory Basis: Conclusive presumptions of consent

A

S 76 SOA 2003

37
Q

Statutory Basis: Sexual Assault

A

S 3 SOA 2003

38
Q

Statutory Basis: Definition of ‘Sexual’

A

S 78 SOA 2003

39
Q

Statutory Basis: Assault by Penetration

A

S2 SOA 2003

40
Q

Statutory Basis: Rape

A

S1 SOA 2003

41
Q

R v G (2009)

A

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

42
Q

Walker

A

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

43
Q

Statutory Basis: Sexual Offences Against Children Under 16

A

S 9-16 SOA 2003

44
Q

Statutory Basis: Sexual Offences Against Children Under 16 by under 18s

A

S 13 SOA

45
Q

CPS Guidance: Sexual Offences Against Children Under 16 by under 18s

A

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

46
Q

Rape: AR

A

Intentional penetration of the vagina, anus, or mouth of another person which his penis
V does not consent to penetration

47
Q

Rape: MR

A

D does not reasonably believe that V consents

48
Q

New Mens Rea of rape: evaluation

A
  1. 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’
  2. More likely that the D’s previous convictions and character will come out in modern trials, which may help towards conviction.
  3. Limits have been imposed on cross-examining about V’s previous sexual history
49
Q

Evidential Presumptions: Evaluation

A
  1. Threshold for rebuttals is a low one
  2. 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.
  3. Would it be better to put a burden of proof on the defence?
50
Q

Aimbit of sexual offences against children under 16

A

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:

Criminal Law (10 decks)

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