Sexual offences Flashcards
Penetration is a continuing act
Kaitamaki v R
Also SOA s.78(2)
Touching is any touching
Faulkner v Talbot
Touching can be through clothes
R v H
To be able to consent you must also have capacity to withdraw consent`
R v Malone
Passed out I think
To be able to consent you must also have the freedom to withdraw consent`
MC v Bulgaria
Driven into the woods
Can’t rely on future consent (unless possibly in established relationship)
R v Ciccarelli
Consent is to the act itself, other matters irrelevant
Not doing something in return can’t make it rape
R v Linekar
Not paying prostitute didn’t constitute rape
Consent is to the act itself, other matters irrelevant
Unknown facts about one of the parties aren’t relevant
R v B
Doesn’t matter that he had HIV
May give conditional consent relating to the act itself
Assange v Swedish Prosecution Authority
If the victim can’t say anything or can’t remember or don’t want to testify can rely on the evidential presumptions of s.75
R v Hysa
Slipping in and out of consciousness so presumed that she can’t consent
Problem with s.75
Defendant can just say she consented or that he reasonably believed she did. Court may not always be convinced but nevertheless s.75 is somewhat flawed and s.76 is stronger.
Need to understand the basics like pregnancy and STD’s to consent
IM v LM
Can’t consent if tricked to the purpose of the act
R v Williams, blowjob to help sing
S.76
Drunken consent is still consent
R v Bree
Unless so much that doesn’t have capacity to agree
Mistake as to age is irrelevant
R v G
Mere submission is not consent
R v Olugboja
If the deception is not to do with the nature and purpose can’t be under s.76
May still fall under s .74 by lacking the free choice of consent
R v Jheeta
No freedom to agree, submitted for money
R v Kirk
Must either know there was no consent, or be reckless to whether ther was consent i.e. I didn’t really care about her feelings at all
R v Satnam and Kewell
Can’t rely on mistake to identity unless you properly checked
Whitte
I f mistake to identity is caused by drink then cannot be relied on as is a basic intent offence
R v Fotheringham
Deception as to nature and PURPOSE
Gets boys to masturbate on webcam for an “experiment”
R v Green
Deception as to NATURE and purpose
Girl pretending to be a boy
R v McNally
Interplay between s.74 and s.76
Would seem to be separate i.e. deception is only relevant if it falls under s.76 and does not affect freedom and capacity under s.74.
In Assange it is stated obiter that it would be extraordinary for parliament to intend that conduct which is deceptive would be excluded from s.74
Would it be though? s.74 could deal with the frightened and incapacitated while s.76 deals with the deceived.
This is important. What if consent is freely given but had been lied to that the partner didn’t have HIV? Wouldn’t fall under s.76 so need s.74 to include deceptions for it to negate consent
