Sexual Offences Flashcards
R v H
V was walking her dog when D asked her the time and ‘Do you fancy a shag?’ He then followed her and grabbed her tracksuit bottoms by the fabric and tried to pull her towards him. V managed to break free and ran home. D was charged with sexual assault. He submitted that grabbing tracksuit bottoms alone did not amount to ‘touching’ and that it could not be regarded by a reasonable person as ‘sexual’ under §78(b).
A person ‘touched’ another for the purpose of sexual assault if D touched the clothes V was wearing since touching includes touching through anything. There need not be any pressure felt by V.
§78(b) should be left to the jury through a two part test since there are two requirements:
touching because of its nature may be sexual (if yes: second question, if no: not guilty)
touching because of its circumstances/the purpose of any person in relation to it is sexual (if yes: guilty, if no: not guilty)
Nature of touching in §78(b) refers to the actual touching so in answering the first part of the question the jury should not take into account circumstances before or after the touching or any evidence of the purpose of the person.
Olugboja
D and L met V and K at a discotheque and offered to take them home, but instead took them to L’s bungalow. V and K refused to go in the bungalow. D went into the house and L raped V in the car. They all returned to the bungalow, in which L dragged K into a bedroom and D told V he was going to have sex with her. V told him about the car and asked to be left alone. D told her to take off her trousers. V complied and D had sex with V. D admitted to sexual intercourse and was charged with rape. The judge directed the jury that although V had submitted to sexual intercourse without force or threats of violence and had not screamed or struggled, they would have to consider whether she consented or not. D was convicted.
Sexual intercourse does not have to take place as a result of fear, fraud, or force for there to be a lack of consent.
The jury should decide whether V consented or not with direction according to the circumstances of each case.
Kirk
V was a girl aged 14 who had previously been abused by D. V ran away from home and was in the street, dirty, hungry, without a place to go to. V hoped that D would help her. D offered to give £3.25 if V agreed to sexual intercourse. V agreed and used the money to buy food. D was found guilty of rape.
There are circumstances in which an offer to exchange some benefit for sexual intercourse will not be regarded as genuine consent.
Willing submission will not always equate to consent.
The jury should consider all pressures of the victim when deciding whether or not there is freedom to make a choice.
Bree
D visited his brother Michael. Michael, his girlfriend Holly, D, and their friend M all went out to drink and got drunk. When they returned to Michael, Holly, and M’s flat, both M and Holly threw up. D washed M’s hair and put her to bed and had sex with her. The evidence of M and D do not directly correspond since M does not recall all of the events and D provides evidence that M fully consented to sexual activities. D was found guilty of rape but his conviction was quashed.
Drunken consent is still consent.
If the capacity of a person to choose was lost through drink V was not consenting.
If V consumed substantial quantities of alcohol but still remained capable of choosing whether or not to have intercourse V was consenting.
The capacity to choose may evaporate before unconsciousness but that is fact specific.
When V is affected by voluntary intoxication the jury should be given assistance to the meaning of capacity and the extent alcohol can be taken into account in deciding whether V co
R v B
D was paranoid schizophrenic and believed he had sexual healing powers so he could make someone better by having sex with them. D told V he could make her better by having sex with her. V objected but D had sex with her nevertheless. Even though the sexual act was motivated by D’s belief in his sexual healing powers it did not affect his ability to understand that V was not consenting. D was found guilty.
A belief in consent had to be genuinely held and had to be reasonable.
A delusional belief is by definition irrational and unreasonable.
Unless the state of mind amounts to insanity in law, beliefs in consent arising from delusional psychotic illness or personality disorder have to be judged by objective standards of reasonableness without taking into account the disorder which induced a belief that would otherwise not arise.
The reasonableness of a belief will depend on D’s ability to read social signs. An impaired ability to recognize them may not be described as irrational and therefore the belief may be found not to be unreasonable given the facts.
Ciccarelli (2001)
D tried to have sex with V at a party after V kissed him, V was asleep and D touched her with his penis. She woke up and told him to leave. He did. Convicted under s75 ss(a)-(c) and s3
D cannot claim he thought D was reasonably consenting because V was asleep
D has to have some evidence that the belief is reasonable
R v C (2009)
V was a schizophrenic and was suffering a relapse when she met D. V was distressed and told D she wanted to leave the area. D took her to his friends house and gave V crack cocaine. V was very panicky and suffered an irrational fear of death which she said contributed to why V did not object when D asked her for sex. Appeal allowed b/c mental illness took away capacity for choice.
To be capable of making a choice there must be free will which V did not have due to her illness and fear of death
Shows that mental illness can invalidate apparent consent
Flattery
D was falsely giving medical and surgical advice for money. V, a girl of 19, and her mother went to D for advice to cure V’s fits. D stated to V’s mother that she needed her ‘nature’s string’ to be broken to cure her fits. Neither the mother nor V understood what this meant so allowed the process believing it was medical treatment. D took V to another room and had sex with her. D was convicted of rape.
When V’s consent is wilfully and fraudulently induced by D it is accepted that V does not consent.
Williams
D was choirmaster at the Presbyterian church and was acquainted with V, a girl of 16, who was in the choir. He told her that her singing was not right so he had to make an ‘air passage’ to improve her singing and had sex with her. V believed that what D was doing was for the purpose of improving her singing and thought it was an operation. D was convicted of rape.
When V is mistaken to the nature and purpose of the act she will not have consented.
Linekar
V was a prostitute who was approached by D. V agreed to have sex in exchange for £25. After sex, D walked off without paying V. V pressed charges of rape as she put forth that her consent had been vitiated as to the fraud regarding the payment since she would not have consented otherwise. D was not convicted.
Consent to sex may be vitiated by fraud as to the nature of the act or the identity of the person carrying it out.
When there is false promise of payment consent is not vitiated by the fact that there is no intention of payment.
Jheeta
D and V were involved in a sexual relationship. V started receiving anonymous threatening phone calls and text messages that were from D, but she was unaware of this and confided in D. D stated he would contact the police but he did not, and instead sent V messages ‘from the police’ and that V should continue having sex with D on grounds that she would be liable to a fine if she did not. D accepted he was responsible for this and that on several occasions V had not truly consented. D was not found liable under §76(2)(b) but it was accepted that consent under §74 was not present and D was aware of this. D was convicted of rape.
§76(2)(a) is relevant only when D deliberately deceives V about the nature or purpose of the intercourse and no deception arises when there is deception in any other way.
When D accepts that V was persuaded through deception and does not truly consent, V does not consent for the purpose of §74.
Devonald
D was the father of a 16 year old girl who had been in a relationship with V. After D’s daughter and V broke up, D pretended to be ‘Cassey’, a 20 year old girl, who spoke to V online and convinced V to masturbate in front of a webcam. D was convicted of sexual assault.
When D deceives V to the purpose of the act, he will have been evidentially presumed to not have consented.
Bingham
D contacted V, his girlfriend, through the internet purporting to be a Grant and convinced V to send him topless photos. Grant then convinced V to perform sexual acts through the webcam threatening to release the photos. V told D about Grant and D said he had killed him. D then posed as Chad, who said he had received shirtless photos of V from Grant and continued to blackmail V. The judge relied on Devonald and directed the jury that if there was a deception as to the purpose of the act they could prosecute D. It was held that §76(2)(a) did not apply since V was not deceived as to the purpose of the act, which was sexual gratification. Instead, V was found to not have consented under §74.
§76 should narrowly be construed and limited in application.
In any conflict between Jheeta and Devonald, Jheeta should be applied.
Deceit as to peripheral matters will not be enough under §76(2)(a).
