Sexual Offences

Question 1

What is the definition of Rape in s 1 (1) of the Sexual Offences Act 2003

Answer 1

1. 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)

Question 2

What is a statutory punishment for rape?

Answer 2

Under s1 (1) of the SOA 2003

A person guilty of an offence under this section is liable on indictment to imprisonment for life

Question 3

what is the actus reus of rape?

Answer 3

1. the penile penetration by the defendant of the vagina, anus or mouth of another person;
2. who at the time does not consent to the penetration

Question 4

Can a woman be found guilty of rape?

Answer 4

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.

Question 5

Is the actus reus of rape satisfied if consent is withdrawn during penetration?

Answer 5

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

Question 6

Under s74 of the SOA 2003

What is the definition of consent?

Answer 6

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.

Question 7

Intoxication consent

Answer 7

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

Question 8

Submission

Answer 8

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.

Question 9

Assault by penetration as defined in s 2 of the SOA 2003

Answer 9

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)

Question 10

Sexual assault as defined in s3 of the SOA 2003

Answer 10

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

Question 11

What is the penalty for sexual assault?

Answer 11

The offence carries a maximum sentence of 10 years imprisonment

Question 12

What is ‘Touching’ as defined in s3 of the SOA 2003

Answer 12

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

Question 13

What is the definition of sexual as defined in s78 of the Act

Answer 13

“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

Question 14

If it is not clear if touching is sexual jury must decide which two things?

Answer 14

1. Could the touching have been sexual?
2. Had the purpose of the touching been sexually motivated

answering yes to both these questions would lead to finding that the touching was sexual

Question 15

Presumptions as to consent

Answer 15

Presumptions identify

1. lack of consent (actus reus) and
2. lack of belief in consent (mens rea)

Question 16

Presumptions under S76 (2)

Answer 16

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.

2. the defendant intentionally induced the complainant to consent by impersonating a person known personally to the complainant

Question 17

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?

Answer 17

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

Question 18

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?

Answer 18

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

Question 19

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?

Answer 19

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.

Question 20

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?

Answer 20

1. 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.
2. at the time of the act or immediately before the complainant was cause to fear that violence would be used immediately against another person
3. complainant was on the defendant was not unlawfully detained at the time of the relevant act
4. the complainant was asleep or unconscious at the time of the act
5. due to physical disability the complainant could not communicate consent at the time of the relevant act
6. complainants without consent had been administered a substance causing them to be overpowered or stupefied at the time of the relevant act

Question 21

Children as Victims

Sections 5-7 of the sexual offences act 2003

Answer 21

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

Question 22

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)…

Answer 22

1. Intentionally touches another person (B)
2. the touching is sexual, and either
3. B is under 16 and a does not reasonably believe that be 16 or over, or
4. B is under 13

Question 23

Is there a defence for sexually touching a child?

Answer 23

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

Question 24

Section 9 (2) creates an indictable only offence with a maximum penalty of 14 years imprisonment if the touching of a child includes…

Answer 24

1. Penetration of these anus or vagina with any part of A’s body or anything else
2. penetration of B’s mouth with A’s penis
3. penetration of A’s anus or vagina with any part of B’s body, or
4. 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

Question 25

under what circumstances can intoxication be used as a defence?

Answer 25

Intoxication can only ever be used as a defence if it causes the defendant to lack the relevant mens rea to commit the offence

(intoxication therefore cannot be used as a defence in crimes where mens rea does not need to be established)

Question 26

If it is established that the defendant was intoxicated and lacked the necessary mens rea what to other elements need to be established?

Answer 26

1. Whilst the intoxication voluntary or involuntary?

2. Is the crime one basic or specific intent?

Question 27

What is in voluntary intoxication?

Answer 27

Generally speaking intoxication is only in voluntary if either the defendant had no knowledge that he was taking alcohol or drugs (e.g. his drinks are spiked) or, he takes a medically prescribed drug in accordance with the instructions and it has unusual side effects. If he exceeds the dose or take alcohol with the medication when he is told not to he would be voluntarily intoxicated

Question 28

What is the difference between crimes of basic intent and specific intent

Answer 28

To establish whether a crime is of basic intent or specific intent the Majewski approach should be used
crimes of specific intent require key mens rea or intention
crimes of basic intent require proof of recklessness. That recklessness is enough for the mens rea of basic intent to be satisfied and the defendant to be liable if

Question 29

Can voluntary intoxication be used as a defence?

Answer 29

Voluntary intoxication can only be used as a defence to crimes of specific intent when the defendant was so affected by drink/drugs that he did not form the necessary intention for the mens rea of the offence. It follows that voluntary intoxication is no defence to any crime that can be committed recklessly or negligently or if it is one of strict liability

Question 30

Can in voluntary intoxication be used as a defence

Answer 30

It may be used as a defence to any crime whether specific or basic intent if the defendant did not have the mens rea for it. The prosecution would have to prove intent or recklessness

Question 31

The case of Dutch courage
Attorney-general for Northern Ireland v Gallagher (1963)
What did the court to decide?

Answer 31

Lord Denning said
If a person while sober forms and intention to kill and then get drunk to give himself Dutch courage to go through with the killing he cannot rely on self induced drunkenness as a defence nor can it be used to reduce the offence to manslaughter. The wickedness of his mind before he got drunk coupled with the act carried out is enough to condemn him