Sexual offences Flashcards
Charles Sweenie
‘The essence of rape was that intercourse was obtained “without the woman’s consent.” The majority of the Court held that force was a necessary component in the crime of rape. The Opinions in Sweenie were examined closely by the judges in the Reference. Sweenie was charged with intercourse with a sleeping woman. The Court held it to be an indecent assault. They were reluctant to categorise the crime as rape, which was then a capital offence. Accordingly in Sweenie intercourse without consent but without force was categorised as an indecent assault and would now be categorised as clandestine injury.
Lord Advocate’s Reference (No 1 of 2001) 2002 SLT 466
At common law, the actus reus of rape was constituted by a man having ‘sexual intercourse’ (ie penile-vaginal penetration) with a woman without her consent. The use of force (or the threat of force) was not required
S/Stallard v HMA
An accused person was charged inter alia with raping his wife while they were cohabiting. At a preliminary diet objection was stated to the relevancy of the charge, but was repelled. The accused appealed and argued that since the time of Hume it had been accepted, that no charge of rape lay in these circumstances. Held, that whether or not the reason for the husband’s immunity from a charge of rape committed upon his wife, was a good one in the 18th and early 19th century, it had since disappeared altogether. There was no doubt that a wife did not consent to assault upon her person and there was no plausible justification for saying today that she nevertheless was to be taken to consent to intercourse by assault, and appeal refused.
HMA v Cooperwhite
Recent case considering the appropriate sentence in a rape case where the complainer and accused are known to each other
Involved a husband repeatedly raping his wife – the wife was 5 months pregnant and had a condition whereby it was dangerous for her to have intercourse.
The husband was initially given a lesser sentence of 6 years, the Crown appealed against this.
HELD: Appeal refused. The sentence, although lenient, fell within the range of sentences reasonably open to the trial judge.
Marr v HMA
Common law: consent means consent
In this case, a jury asked the Sheriff for guidance on consent, the appeal court endorsed the Sheriff’s response that the “definition of consent is a common, straightforward definition of consent. It’s the common English word given it’s normal meaning”.
Basically said that consent was consent. The judges didn’t want to go beyond the common understanding of what consent was.
William Fraser & R v Williams
It was held in this case that Fraser had not committed rape by impersonating a woman’s husband in order to have sexual intercourse with her.
The woman was not deceived as to the nature of the act, but merely as to the identity of the person with whom she was having intercourse.
This was made “rape” by S13(2)(e) of the 2009 Act (and also by the Criminal law (consolidation) (S) Act 1995).
R v Bree
A young woman had gone out for drinks, went back with a guy to her flat. She was very drunk and was sick. He helped her get out of her vomit covered clothes, she was passing out etc, but it was held that she was still consenting even though she was that drunk.
R v Williams
Deception as to sexual nature of conduct
The defendant was a singing coach. He told one of his pupils that he was performing an act to open her air passages to improve her singing. In fact he was having sexual intercourse with her. It was held that her consent was vitiated by fraud as to the nature and quality of the act.
Baillie v HMA
In this case a doctor had been sentenced to nine years’ imprisonment, discounted from 12, in respect of a guilty plea to 17 charges of assault against female patients involving acts of indecency including, inter alia, unnecessary internal examinations. The court held that the starting point of 12 years was excessive, there being no penile penetration or physical violence. Further, in setting the degree of severity of sentence it was not appropriate to include an element as a deterrent to any other health professional who might find himself similarly tempted. Balancing this exception, as it were, was the observation that in most cases of this sort the offender would be a person of otherwise good character so that no substantial reduction was to be expected in that regard
R v B
Held that the defendant’s failure to disclose that he was HIV-positive was in no way relevant to the question of consent under Sections 74 or 76 of SOA 2003
Dealt with under assault instead.
DPP v Morgan
Where the only expression or indication of agreement to the conduct is from a person other than B:
One of the defendants told other 3 men they could have sex with his wife, and if she doesn’t consent, then she still consents because it turns her on to disconsent.
Court found she didn’t consent because of the struggle.
Can express disconsent through 3rd party.
Individual’s consent is being communicated to a third party rather than a third party saying they were consenting when they might not be.
R v G
No defence as to mistake of the age of a child.
15 year old boy had sex with 12 year old girl who he thought was 15
Convicted of rape of a young child
R v HMA
Formerly it was thought that incestuous activity short of penile-vaginal penetration could amount to the crime of shameless indecency.
(shameless sexual conduct)
Webster v Dominik
Abolished this offence of shameless indecency.
It wasn’t the 2009 act that abolished shameless indecency.
There is still a common law offence of public indecency.
3 forms of shameless indecency (pre Dominik)
- Shameless sexual conduct
- Indecent exposure: see McKenzie v Whyte (1867) 4 Irv 570; Usai v Russell 2000 SCCR 57.
- Indecent and obscene publications or displays: see Watt v Annan 1978 SLT 198; Robertson v Smith 1979 SLT (Notes) 51; Dean v John Menzies (Holdings) Ltd. 1981 SLT 50; Lockhart v Stephen 1987 SCCR 642 (Sh Ct); Paterson v Lees 1999 JC 159.
