Sexual Offences Flashcards
Section 76
Conclusive Presumptions against consent
1) Deception as to the nature/purpose
2) Impersonation
Queen v Flattery (1877)
Claimed he could cure fits
‘It was natures string wanted breaking’
Deception as to the nature
Consent was obtained fraudulently
Claimed he could cure fits
‘It was natures string wanted breaking’
Deception as to the nature
Consent was obtained fraudulently
Queen v Flattery (1877)
King v Williams (1923)
Singing teacher making air passage
She consented to air passage not to rape
Deception as to the nature
R v Jheeta (2007)
Boyfriend made up a fictitious story
‘deceived as to the situation’ Mr Justice Simon
Not guilty under S76 but could be under S74
R v B (2013)
Boyfriend pretended to be someone else on the internet
Engaged in sexual activity
Jury decided it was deceit by purpose
However retrial was ordered as “peripheral matters’ shouldn’t be included
R v Tabassum (2000)
Medical purpose> Sexual purpose
IT teacher not cancer research
R v Lineker (1995)
Sex with a prostitute for £25
Defendant ran off with the money
Was not fundamental enough to constitute deception as to the purpose
R v Devonwald (2008)
Revenge from father online pretending to be 20 year old girl
Deception as to the purpose
Humiliation not sexual gratification
Elbekkay (1995)
Broadened definition from husband to boyfriend
Impersonation of boyfriend and had sexual intercourse
McCowen LJ Obiter: Suggests that impersonation can extend so someone not known personally to the victim
R v Green (2002)
False medical trial
Deception as to the purpose
Medical rather than sexual
Assange v Swedish Prosecution Authority (2011)
Conditional consent without a condom was not enough to constitute deception as to the nature
Section 75
Evidential presumptions
Circumstances for evidential presumptions: a) b) c) d) e)
a) Asleep/unconscious
b) Unlawfully detained
c) Force or fear of force used before/after
d) Involuntary intoxication
e) Physical incapacity to consent
R v Ciccarelli (2011)
Judge decided that his belief that she wanted to have sex with him was enough to raise a rebuttal
Definition of consent under S74
“A person consents if he agreed by CHOICE and has the FREEDOM and CAPACITY to make that CHOICE”
R v Olugboja (1982)
After seeing him rape her friend, in fear she agreed to have sex
Was there sufficient fear?
Yes- she didn’t have a choice
Dunn LJ:
“every consent involves a submission, but it by no means follows that a mere submission involves consent.”
R v McNally (2013)
Pretended to be a boy online
Deception as to the gender can be a s74 offence
Took away the freedom to make a choice
R v Bree (2007)
Being drunk does not necessarily negate consent
R v DPP (2013)
Wife couldn’t take pill
Consented on the basis her husband wouldn’t ejaculate
He did and she became pregnant
Assange v Swedish Prosecution Authority (2011)
Consented to sex with condom only
Rape
Took away free choice under S74 basic definition of consent
Laura Perrins (2013)
“the court should be slow to fill the vacuum left by a collapse in moral standards”
What was the old MR for consent?
“honest belief” (DPP v Morgan 1975)
What is the current MR for consent
Objective reasonableness
“the court should be slow to fill the vacuum left by a collapse in moral standards”
Laura Perrins (2013)
Consented to sex with condom only
Rape
Took away free choice under S74 basic definition of consent
Assange v Swedish Prosecution Authority (2011)
Wife couldn’t take pill
Consented on the basis her husband wouldn’t ejaculate
He did and she became pregnant
R v DPP (2013)
After seeing him rape her friend, in fear she agreed to have sex
Was there sufficient fear?
Yes- she didn’t have a choice
Dunn LJ:
“every consent involves a submission, but it by no means follows that a mere submission involves consent.”
R v Olugboja (1982)
Chedwyn Evans (2016)
Lady Justice Hallet “we have reached this conclusion with a considerable degree of hesitation”
S41 Youth Justice and Criminal Evidence Act (1999)
Cannot be asked in a cross examination about past sexual history except in certain circumstances
What act is Sexual Offences addressed in?
Sexual Offences Act 2003
Rape Myths
Barbara Evans
“do we seriously think that a female teacher sleeping with a male pupil is on a par with a male teacher sleeping with a girl pupil? I don’t. And neither…would most 15-year-old-boys”
(Barbara Ellen, 2009) “…Women like George are condemned by a kangaroo court of public emotion before they even step into the courtroom…judged to be “worse” that a man, when the crime is exactly the same.”
Temkin and KrahÈ
Where juries believe inaccurate rape myths, they will not make decisions based on the case in hand
