Sexual Offences Flashcards
Incidence of Sexual Offending
Year/end March 2015: 88,219 sexual offences
Rape - increased 34% from year before.
b.2007 and 2012: 56% committed by partner/former partner.
M of J, Home Office, ONS.
Sexual Offences Act 2003 S.1
s.b. page 299
Statutory footing for rape.
(1) offence if…
(a) intentionally penetrates vagina, anus or mouth of another person with penis (GENDERED CRIME)
(b) person does not consent
(c) Not reasonably believe that person consents. (USED TO BE ‘HONEST’ BELIEF (SUBJ. NOW OBJ.)
(2) belief reasonable? - Have regard to all the circumstances, including steps A has taken to ascertain whether B consents.
Sexual Offences Act 2003 S.2
s.b. page 300
Assault by penetration
(1)
(a) intentionally penetrates vagina/anus with A PART OF HIS BODY OR ANYTHING ELSE — = gender neutral.
(b) PENETRATION IS SEXUAL.
Rest of provisions same as for S.1. (rape)
Sexual Offences Act 2003 S.74
S.B. PAGE 320
CONSENT REQUIRED = LEGAL CONSENT
Must agree by choice, and has the freedom and capacity to make that choice.
FIRST LEGAL DEFINITION OF CONSENT.
Different from factual consent - where someone says they’re consenting/expressing acquiescence - but not yet a proper consent in the eyes of the law.
S.75 SOA 2003
s.b. page 320
S.75: EVIDENTIAL PRESUMPTIONS ABOUT CONSENT
(1) If it is proved that
a) D DID relevant act.
b) in circumstances specified in ss.2
c) D knew these circumstances existed -
then…
complainant to be TAKEN NOT HAVE CONSENTED…unless sufficient evidence is adduced to raise an issue…
defendants is to be TAKEN NOT TO HAVE REASONABLY BELIEVED THAT THE COMPLAINANT CONSENTED, unless sufficient evidence is adduced to raise an issue…
(2) Circumstances:
(a) any person was using violence against complainant or causing C to fear immediate violence would be used against him.
(b) causing C to fear violence etc. against another person.
(c) C was, and D was not, unlawfully detained at the time.
(d) C was asleep or unconscious
(e) C - physical disability so would not have been able to communicate consent to D.
(f) Any person had administered a substance to C, without C’s consent, which was capable of enabling C to stupefied or overpowered.
S.76 SOA 2003
s.b. page 321
Conclusive presumptions about consent
(1) If proved that D did relevant act in any of the circumstances specified in ss (2) (of this section - not s.75 (2) - to be CONCLUSIVELY PRESUMED
(a) that C did not consent
(b) D did not believe that C consented.
(2) Circumstances:
(a) D INTENTIONALLY DECEIVED C AS TO THE NATURE AND PURPOSE OF THE ACT.
(b) D INTENTIONALLY INDUCED THE TO CONSENT BY IMPERSONATING A PERSON KNOWN PERSONALLY TO C.
R. v BREE [2007]
Drunk evening together - sex - V contended that she was unconscious by that point and never consented although her memory was patchy - D argued that she was conscious and that he reasonably believed that she did consent.
JUDGEMENT FOR D
A DRUNKEN CONSENT IS STILL A CONSENT (Sir Igor Judge P)
V/C - voluntary consumption of alcohol - still remains capable of choosing whether or not to consent.
FACT SPECIFIC - Will depend on the individual’s state of mind on the particular occasion.
IF, THROUGH DRINK, OR OR ANY OTHER REASON, C HAD TEMPORARILY LOST HER CAPACITY TO CHOOSE WHETHER TO HAVE SEX, SHE WAS NOT CONSENTING, AND SUBJECT TO D’S STATE OF MIND, THAT = RAPE.
…BUT, WHERE C HAD VOLUNTARILY CONSUMED SUBSTANTIAL AMOUNTS OF ALCOHOL, BUT NEVERTHELESS REMAINED CAPABLE OF CHOOSING, AND AGREED TO HAVE SEX, THAT WOULD NOT BE RAPE.
R. v H [2007]
Possible for capacity to disappear whilst conscious.
CAPACITY TO CONSENT IS purely a legal question for JURY TO DETERMINE.
Jury entitled to find that a V who was still conscious, nonetheless no longer possessed capacity to consent.
In case, V was conscious, but so drunk that she had trouble walking, slurring words and was largely unresponsive when D undressed her.
R. v Ched EVANS [2012]
OK for the friend to have reasonably believed that C/V consented TO HIM - as they had spent night together anyway.
BUT NOT OK for Evans to reasonably believe this - v. different circumstances - his involvement in the sexual activity than the friend.
MATTERS ENTIRELY OPEN TO THE JURY.
+ Evans did not seem to have taken any steps to ascertain whether C consented, provided by S.1 (2) SOA 2003.
DPP v MORGAN [1976]
Husband told other men to come have sex with his wife and that if she struggled, it was her way of enjoying it. ‘Make-believe’.
Acquitted of rape by H of L.
Reflects old position of law - NEEDED JUST TO BE HONEST BELIEF ON PART OF D THAT C CONSENTED, NOT REASONABLE BELIEF.
‘Morgan defence’ - abolished by SOA 2003.
Youth Justice and Criminal Evidence Act 1999 S.41
Not in SB
Limits admissibility of evidence of a C’s sexual history if C is under 18.
May only be allowed if D makes application to court - will NOT be allowed UNLESS a refusal to admit such evidence would render unsafe the conclusion reached by the jury.
Must be ‘RELEVANT TO THE EVENT.’ - Requires proximity in time between the alleged offence and the specific piece of C’s sexual history in question.
(R. v A) - Somewhat changed meaning of S.41 - court will balance interests of C, D and society when weighing up whether the evidence shall be admissible.
R. v Williams [1923]
D - singing lessons and voice production to 16 y.o girl.
Told her her breathing wasn’t right - said he’d perform procedure on her to ‘open up air passage’.
Rape conviction upheld -
SHE WAS DECEIVED AS TO THE VERY NATURE AND PURPOSE OF THE ACT.
R. v Tabassum [2000]
D - deceived 3 women - breast exam for medical research.
Conviction for indecent assault upheld.
Only had consented to act of medical nature - NOT ONE WHERE THE NATURE AND PURPOS WAS SEXUAL.
R. Jheeta [2007]
First case on SOA 2003 S.76 (2)(a)
C - deceived by texts from D purporting to be from police - would have to pay heavy fine if did not sleep with D.
C was already happy to have sex with D from time to time, but not on the occasion in question.
D’s conviction of rape upheld BUT SENTENCE REDUCED due to s.76 (2)(a)
SHE WAS NOT DECEIVED AS TO THE NATURE AND PURPOSE OF THE ACT, BUT RATHER WAS DECEIVED AS TO THE SITUATION IN WHICH SHE FOUND HERSELF.
R (on the application of F) v DPP and A [2013]
Example of CONDITIONAL CONSENT.
She only consented if D did not ejaculate inside her vagina, but did so deliberately anyway.
Held; that her consent was vitiated as she was deprived of choice relating to the crucial feature on which her original consent to the sex was based.
Held to violate legal consent under s.74