Sexual Offences Flashcards
Name some historical views around rape
- The code of Hummurabi
- Rape of Sabine women
What was the focus on rape in past years?
A focus on violence and active resistance
As late as 1965, courts regarded D’s use of force and V’s active resistance as an essential component of rape. What case is this illustrated in?
Howard
What is the law today on rape seen as?
An interference with someones body
Who explained the law of rape as now, takes a more liberal view, with a focus on bodily integrity
Lacey
Consent is a mental element, it is hard to prove what is going on inside someones head. What can help us prove this?
The burden of proof and the balance of probability
s.79 SOA 2003
Penetration is an ongoing process.
Who described rape as “one persons word against another”
Saunders
What is critical to the criminalisation of the law in sexual offences?
The absence of reasonable belief in consent
Name some cases where there is a an explicit condition to the sexual intercourse?
Assange - This is where Assange had entered into sexual intercourse with his partner on the basis of an agreement that hw would wear a condom. However, partway through the sex, assange removed the condom and then claimed to still be wearing it as they continued having sex.
F - Withdrawal before ejacuation
How are the cases of Assange and F similar?
Both of these cases are similar in that V specifies explicitly that there are conditions upon her consent, D accepts these conditions and sex is undertaken on the that understanding; but either halfway through or from the start, D intentionally violates V’s conditions and therefore V’s consent is void.
McNallly case
Gender deception. D was convicted for assault by penetration, on the grounds that she had procured the sexual activity by deceiving V as to her (D’s) gender. Gender deception did vitiate consent on the facts.
R v Bree
Drunken consent is still consent
R v Jheeta
Pretended to be the police. Guilty of rape: D’s deception undermined V’s apparent consent
When was it recognised that men can be victims of rape?
Only 25 years ago was there recognition that men can be victims of rape, this is due to a life in a patriarchal society. If men have to be ‘tough’ then we can not possibly recognise that they can be victims of sexual abuse.
What is voyeurism?
Voyeurism is a relatively NEW offence - things are developing quickly in the law. It involves spying on someone when they are engaged in a sexual nature
What is the statutory regime for consent?
Do either of the conclusive presumptions about consent/belief in consent in s76 apply? If not, do any of the evidentiary presumptions about consent/belief in consent in s75 apply? If not, did the complainant consent under the definition in s74?
When does a person consent?
A person consents if he agrees by choice, and has the freedom and capacity to make that choice - s74
Free consent needs to be
Informed and explicit
What did Reed et al say about consent and rape?
“The role consent plays within these offences is a fascinating area of law, and certainly important, but it can also be rather challenging”
Pre SOA 2003, there was no codified definition of consent in order to know what test to apply and the definition of consent was left to the common understanding of the jury. This approach attracted considerable criticism, who highlighted this?
Glanville Williams highlighted the ‘deplorable tendency of the criminal courts to leave important questions of legal policy to the jury’
What was one of the primary ambitions for the SOA 2003?
The reformers working towards the SOA 2003 made a clear and robust definition of consent to be one of their primary ambitions. The definition of consent is now within the SOA 2003, spread across s.74, 75 and 76.
Williams (1923)
Singing teacher deceived a 16 year old, telling her that having sex with her was a procedure to help her singing voice - deception
Dica (2004)
D, knowing he had HIV, had unprotected sex with two victims - guilty of an offence against the person but not rape
