Sexual Offences Flashcards
What is the definition of Rape in s 1 (1) of the Sexual Offences Act 2003
- RAPE
(1) A person (A) commits an offence if-
(a) he intentionally penetrate the vagina, anus or mouth of another person (B) with his penis, (Actus Reus)
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents. (Mens Rea) (Subjective)
What is a statutory punishment for rape?
Under s1 (1) of the SOA 2003
A person guilty of an offence under this section is liable on indictment to imprisonment for life
what is the actus reus of rape?
- the penile penetration by the defendant of the vagina, anus or mouth of another person;
- who at the time does not consent to the penetration
Can a woman be found guilty of rape?
The act states that penetration must be with a penis. Therefore a woman could not be found guilty of rape.
However she could be an accomplice to rape if she suggested the rape or assists a male defendant by restraining the victim.
Is the actus reus of rape satisfied if consent is withdrawn during penetration?
s79(2) of the Act Any withdrawals of consent by the victim during penetration suffices to commit the actus reus of rape
R v Kaitamaki
Note: if the defendant withdrew following withdrawal of consent this would not constitute rape
Under s74 of the SOA 2003
What is the definition of consent?
Under s74 of the SOA 2003
A person consents if he or she agrees by choice, and has the freedom and capacity to make that choice.
Intoxication consent
R v Dougal [2005]
prosecution decided not to proceed due to the intoxication of the victim. This left open the possibility that consent had been given.
R v Bree [2007]
if through drink (or any other reason) the complainant has temporarily lost the capacity to choose she is not consenting. If intercourse takes place this would be rape. However if the complainant has voluntarily consumed alcohol but remains capable of choosing and agrees to intercourse this would not constitute rape.
Note… capacity to consent may well be lost before the complainant becomes unconscious
Submission
R v Kirk [2008]
the complainant was a young girl who has been sexually abused by the defendant while homeless she had sex with the defendant in return for money and food the defendant was convicted of rape on the basis that the complainant submitted rather than actually consented.
Assault by penetration as defined in s 2 of the SOA 2003
A person (A) commits an offence if-
(a) he intentionally (mens rea) penetrates (actus reus) the vagina or anus of B with any part of his body or anything else
(b) the penetration of sexual (actus reus)
(c) B does not consent to the penetration (actus reus)
(d) A not reasonably believe that B consents (mens rea)
Sexual assault as defined in s3 of the SOA 2003
Sexual assault is the intentional sexual touching of one person by another
The definition of the offence is:
a person (a) commits the offence of sexual assault if:
(a) he intentionally touches another person (B)
(b) the touching sexual
(c) B does not consent to the touching, and
(d) A does not reasonably believe that B consents
What is the penalty for sexual assault?
The offence carries a maximum sentence of 10 years imprisonment
What is ‘Touching’ as defined in s3 of the SOA 2003
Touching includes penetration and also touching any part of the body of anything house and through anything (e.g. clothing)
R v H [2005] EWCA Crim 732
HELD:that touching individuals clothes was sufficient to amount to touching the purposes of an s3 offence
What is the definition of sexual as defined in s78 of the Act
“Sexual” is defined in s78 as…
Penetration, touching or any other activity is sexual if a reasonable person (Objective test) would consider that
(a) it is of a sexual nature (i.e. clearly sexual)
(b) this covers situations where a scenario may or may not be sexual depending on the circumstances. Full consideration should be given to the circumstances and the defendants motive.
NOTE: If the conduct is clearly not sexual it cannot be classified as sexual irrespective of the defendant’s motives
If it is not clear if touching is sexual jury must decide which two things?
- Could the touching have been sexual?
- Had the purpose of the touching been sexually motivated
answering yes to both these questions would lead to finding that the touching was sexual
Presumptions as to consent
Presumptions identify
- lack of consent (actus reus) and
- lack of belief in consent (mens rea)
Presumptions under S76 (2)
Lack of consent and lack of belief in consent are established if:
1. the complainant was intentionally deceived as to the nature or purpose of the act.
- the defendant intentionally induced the complainant to consent by impersonating a person known personally to the complainant
R v Jheeta [2007]
The defendant was deceived by the complainant into believing she would be fined by the police if she did not have sexual intercourse with him.
How did the court find?
The Court of Appeal interpreted S 76 (two) (a) narrowly and held that although there is been a deception complainant had not actually been deceived as to the nature and purpose of the act therefore the presumptions did not apply
NOTE: he was however convicted on the basis that the complainant had not consented and the defendant had the necessary mens rea
Assagne v Swedish Prosecution Authority [2011]
The defendant was charged with sexual assault and rape. The claimant had agreed to sexual intercourse if the defendant wore a condom he did not use a condom.
How did the court find?
Presumptions under S76 were not triggered as there’s no deception as to the nature and purpose of the act the court did however observe that the prosecution could still succeed in the claimant’s lack of consent under S74 because she did not consent to unprotected sex
R v Devonald [2008] EWCA Crim 527
The defendant wanted to take revenge on the complainant for jilting his daughter. He posed over the Internet as a woman and persuaded the complainant to masturbate on a WebCam. The purpose was to embarrass and expose the complainant.
How did the court find?
The court held that the defendant had deceived the complainant as to the purpose/nature of the act. He was charged with causing a person to engage in sexual activity without consent under S4 of the sexual offences act. The court could broad approach and decided the fundamental purpose of the act was for sexual gratification and the complainant had been deceived as to its purpose.
Section 75
If the prosecution can prove that :
1. The defendant carried out the relevant act (e.g. penetration / sexual touching)
2. any of the six specified circumstances existed
3. the defendant knew the circumstance existed
there is presumed the victim did not give consent and the defendant did not have a reasonable belief in consent
What are the six circumstances?
- any person at the time of the act or immediately before it was using violence or causing the complainant to fear the immediate violence would be used against them.
- at the time of the act or immediately before the complainant was cause to fear that violence would be used immediately against another person
- complainant was on the defendant was not unlawfully detained at the time of the relevant act
- the complainant was asleep or unconscious at the time of the act
- due to physical disability the complainant could not communicate consent at the time of the relevant act
- complainants without consent had been administered a substance causing them to be overpowered or stupefied at the time of the relevant act
Children as Victims
Sections 5-7 of the sexual offences act 2003
Sections 5-7 of the sexual offences act 2003 replicate the offences under section 1-3 where the victim is a child under 13. The only difference is that neither consent of the victim nor the defendant’s belief in consent is relevant.
Any offences under section 5-7 with a child under the age of 13 constitute rape. This is an issue of strict liability
Sexual Activity with a Child
Section 9 of the Sexual Offences Act 2003
Creates an offence of intentionally sexually touching a child if a person aged 18 or over (A)…
- Intentionally touches another person (B)
- the touching is sexual, and either
- B is under 16 and a does not reasonably believe that be 16 or over, or
- B is under 13
Is there a defence for sexually touching a child?
if the victim is aged 13 to 15 the defendant will have a defence if he reasonably believed the victim to be over the age of 16.
No such defence is available if the victim is under 13 in such cases the issue of age is one of strict liability
Section 9 (2) creates an indictable only offence with a maximum penalty of 14 years imprisonment if the touching of a child includes…
- Penetration of these anus or vagina with any part of A’s body or anything else
- penetration of B’s mouth with A’s penis
- penetration of A’s anus or vagina with any part of B’s body, or
- penetration of A’s mouth with B’s penis
if the touching does not fall into any of the categories above it could be triable either way with a maximum 14 year sentence in a Crown Court trial.
For defendant under the age of 18 the maximum penalty is five years imprisonment
