Sexual offences

Question 1

Penetration is a continuing act

Answer 1

Kaitamaki v R

Also SOA s.78(2)

Question 2

Touching is any touching

Answer 2

Faulkner v Talbot

Question 3

Touching can be through clothes

Answer 3

R v H

Question 4

To be able to consent you must also have capacity to withdraw consent`

Answer 4

R v Malone

Passed out I think

Question 5

To be able to consent you must also have the freedom to withdraw consent`

Answer 5

MC v Bulgaria

Driven into the woods

Question 6

Can’t rely on future consent (unless possibly in established relationship)

Answer 6

R v Ciccarelli

Question 7

Consent is to the act itself, other matters irrelevant

Not doing something in return can’t make it rape

Answer 7

R v Linekar

Not paying prostitute didn’t constitute rape

Question 8

Consent is to the act itself, other matters irrelevant

Unknown facts about one of the parties aren’t relevant

Answer 8

R v B

Doesn’t matter that he had HIV

Question 9

May give conditional consent relating to the act itself

Answer 9

Assange v Swedish Prosecution Authority

Question 10

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

Answer 10

R v Hysa

Slipping in and out of consciousness so presumed that she can’t consent

Question 11

Problem with s.75

Answer 11

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.

Question 12

Need to understand the basics like pregnancy and STD’s to consent

Answer 12

IM v LM

Question 13

Can’t consent if tricked to the purpose of the act

Answer 13

R v Williams, blowjob to help sing

S.76

Question 14

Drunken consent is still consent

Answer 14

R v Bree

Unless so much that doesn’t have capacity to agree

Question 15

Mistake as to age is irrelevant

Answer 15

R v G

Question 16

Mere submission is not consent

Answer 16

R v Olugboja

Question 17

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

Answer 17

R v Jheeta

Question 18

No freedom to agree, submitted for money

Answer 18

R v Kirk

Question 19

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

Answer 19

R v Satnam and Kewell

Question 20

Can’t rely on mistake to identity unless you properly checked

Answer 20

Whitte

Question 21

I f mistake to identity is caused by drink then cannot be relied on as is a basic intent offence

Answer 21

R v Fotheringham

Question 22

Deception as to nature and PURPOSE

Gets boys to masturbate on webcam for an “experiment”

Answer 22

R v Green

Question 23

Deception as to NATURE and purpose

Girl pretending to be a boy

Answer 23

R v McNally

Question 24

Interplay between s.74 and s.76

Answer 24

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