Sexual Offences Flashcards
What are the four sexual offences studied in this course, and their brief definitions?
Rape - The defendant intentionally penetrating , with his penis, the vagina, anus or mouth of another person (the complainant).
Assault by penetration - The defendant intentionally touching another person (the complainant), where the touching is sexual.
Sexual Assault - The defendant intentionally touching another person (the complainant), where the touching is sexual.
Causing a person to engage in sexual activity without consent - The defendant intentionally causing another person (the complainant) to engage in an activity, where the activity is sexual.
What piece of legislation is rape defined in? what is the definition?
Section 1 of the Sexual Offences Act 2003
(1) A person (A) commits an offence if-
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis;
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents
(2) whether a belief is reasonable is to be determined having regard to all circumstances, including any steps A has taken to ascertain whether B consents.
What is the max sentence for rape?
Life imprisonment
Break down the offence of Rape into AR and MR
AR - Penetration (with his penis) - Vagina/ Anus/ Mouth of another - Without consent MR - intentional (penetration) - D did not have a reasonable belief in consent - having regard to all the circumstances, including any steps D took to ascertain consent.
Give the additions to the 2003 act
- penetration of the mouth - ismail (2005)
- Belief must be reasonable
- includes reconstructive surgery s.79 - Transexuals
- Women can commit assault by penetration
- A male to female trans can still be raped
- and a female to male trans can rape
What is penetration?
- By the penis (incl surgically constructed) of the vagina (incl surgically constructed) mouth or anus
- its a continuing act from entry to withdrawal
- s.79 (2): Kaitamaki (1985) - Failure to withdraw is still penetration even if consent first given for initial penetration.
- slightest degree of penetration s.79 (a) R v Cooper and Schaub [1990]
- no emission/ejaculation needed
Give the three case examples where there was an absence of consent
- R v R [1991] - used to be the case implied consent by the wife for sex - Lord Keith: marriage is in modern times regarded as a partnership of equals
- Olugboja [1982] QB 320: ‘“mere submission” doesn’t equal consent’
- Malone [1998] - not necessary that the victim positively dissented to it, resistance can suffice.
What is the statutory definition of consent?
s.74: ‘A person consents if he agrees by choice, and has the freedom and capacity to make that choice’
go through the three parts of the statutory definition of consent
- Agreed by choice- Requires awareness of nature of activity, mistake or deception may vitiate consent. - Jheeta [2007] posing as policeman to keep relationship going
- Freedom to make that choice - R v Kirk [2008] - did it for food had no choice. lack of freedom vitiates consent
- capacity to make that choice - lacks capacity: consent is vitiated
Jheeta - requires c to have sufficient knowledge/awareness and understanding of the act in question.
What was said in the case of Bree [2007] about intoxication and consent?
Also Shehu [2011]
“where c has voluntarily consumed… alcohol, but remains capable of choosing whether or not have… intercourse, and in drink agrees to do so, this would not be rape”
shehu- if drunk and said no then they do have capacity
What are the two types of consent presumptions?
What sections are these presumptions contained?
You apply both presumptions to whether c consented (AR) and whether D had a reasonable belief in consent (MR)
section 75 evidential presumption
section 76 conclusive presumption
What are the evidential presumptions?
If the prosecution proves a-e, the defendant doesn’t have to prove the victim consented, must just give evidence that there was consent, and he reasonably believed there to be consent. Then it would be back on the prosecution to prove beyond reasonable doubt this wasn’t the case.
Give sections 75 (2) a-e with case examples
a - person was using violence against complainant or others - R v Douglas [2003]
b - Complainant was unlawfully detained - R v David T [2005]
c - Complainant was asleep R v Larter and castleton [1995]
d - complainant’s physical disability meant could meant could not communicate on consent - R v cooper [2009]
e Stupfying substance administered to complainant - R v Abbes [2004]
What are the conclusive presumptions? (76)
Where the complainant presumed not to have consented, or defendant would not have believed they consented if:
- (a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act; Tabassum [2002]
- or (b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.
- Then it is conclusively presumed that v did not consent and D did not have reasonable belief as to consent.
Explain all the components of the mens rea for rape
- Intention to penetrate vagina, anus or mouth R v Heard [2008] - intention means deliberate and free willed
- Did not have a reasonable belief in consent (s(1) (1) (c) The prosecution must prove that D did not have a reasonable belief in consent to the jury (morgan [1976])
- S1(2): reasonableness is assessed taking into account all the relevant circumstances including steps taken by D to confirm consent.
