Sexual Offences Flashcards
R v H
D approached victim and made an indecent suggestion; then seized hold of the fabric of the back pocket of her tracksuit trousers; held to amount to touching
Ratio: Touching an individual’s clothing was sufficient to amount to touching for the purposes of a s3 offence.
victim had been approached by a man who asked her ‘Do you fancy a shag’. The victim walked away but was subsequently approached by the same man who asked if she was shy. The man then tried to pull the victim towards him by grabbing at a pocket that was located at the side seam of the victim’s trousers
held that the touching of an individual’s clothing was sufficient to amount to ‘touching’ for the purposes of a s 3 offence.
The Court also confirmed that, where it was not clear whether touching was by its nature ‘sexual’ or not, it was appropriate to ask the jury to consider two questions:
(a)Would the jury, as 12 reasonable people, consider that the touching could be sexual?
(b)Whether the jury, as 12 reasonable people and in all the circumstance of the case, would consider that the purpose of the touching had in fact been sexual?
The affirmative answer to both questions would lead to a finding that the touching was sexual
R v Kirk
Young girl had been sexually abused by D (and others); she had sex with D when homeless and hungry in return for some money for food; D convicted of rape because she had submitted, not consented
Ratio: Actual consent should be distinguished from submitting.
Kaitamaki v R
D penetrated women thinking she was consenting, but once he realized she did not consent he did not withdraw; held to amount to rape because AR of rape is continuing act and it coincided with his lack of belief in her consent
Ratio: Penetration is a continuing act and any withdrawal of consent by the victim during penetration suffices to commit the AR
R v Bree
2007 case - Victim highly intoxicated; recalled being sick and Bree and his brother washing her hair; lost consciousness and regained it finding Bree penetrating her; agreed she never said no but also never consented, while Bree claimed she was capable of consenting, had undressed herself and seemed willing
Ratio: Drunken consent is still consent; however, if the person loses their capacity to consent they are not consenting, and capacity to consent may be lost before losing consciousness.
R v Dougal
2005 case. Victim was highly intoxicated; unable to remember whether or not she had consented to the sexual intercourse; prosecution unable to pursue case because opened up the possibility that victim had given consent, even though it was drunken consent
Ratio: Lack of consent is fundamental for a rape charge; if lack of consent cannot be proven a conviction will not be possible.
Assange v Swedish Prosecution Authority
Having unprotected sex where victim only consented to protected sex may amount to AR of rape
R v Jheeta (Harvinder Singh)
D deceived complainant into believing she would be fined by police if she did not have sexual intercourse with him; this was in fact untrue; held that this did not fall under s76(2) SOA 2003 – rebuttable offences
Ratio: s76(2)(a) regarding irrebuttable presumptions may be narrowly interpreted – although deceptions may be involved, if the complainant has not actually been deceived as to the nature or purpose of the act, i.e sexual intercourse, the presumption will not apply.
(This did not necessarily mean that the defendant could not still be found guilty; only that the conclusive presumption did not apply. In this case, he was nevertheless convicted on the basis that the complainant had not consented, applying s 74 generally, and that the defendant had the necessary mens rea for rape.)
Assange v Swedish Prosecution Authority
Sweden applied to extradite Julian Assange to face sexual assault and rape charges. Court considered whether offences would also be offences under SOA 2003. Victim stated she only agreed to sexual intercourse if he wore a condom and he didn’t. held presumption under s76 not triggered because no deception to the nature and purpose of the act. But observed that could still succeed under s74 as victim only consented to protected sex not unprotected sex.
R v Devonald
D wanted to take revenge on the complainant for jilting his daughter; posed over the internet as woman, ‘cassey’ and persuaded complainant to masturbate on a webcam for the sexual gratification of ‘Cassey’; was actually meant to embarrass and expose complainant; charged with engaging in sexual activity without consent (s4 SOA)
Ratio: S76(2)(a) regarding irrebuttable presumptions may be interpreted broadly – where there has been deceit regarding the fundamental purpose of an act (i.e embarrassment rather than sexual gratification) this will raise an irrebuttable presumption of lack of consent.
C of A held that the jury was entitled to find that the defendant had deceived the complainant as to the ‘purpose’ (if not the ‘nature’) of the act.
R v Kingston
D coffee spiked with drugs; he then assaulted a young boy; D knew he had paedophile tendencies but claimed he would have not assaulted boy if he had not been under the effect of drugs; held that absence of moral fault was not in itself sufficient to negative the necessary mental element of the offence
Ratio: Involuntary intoxication will not be a defence where the D still has the necessary MR.
R v Hardie
D upset after breakup and took valium; later started fire and was charged wit arson but he claimed he did not know what he was doing because of the effect of the drug; held his intoxication was involuntary whilst no one force him to take it his condition from a non-dangerous drug no suggestion that he knew or ought to have known that would render him aggressive and incapable of appreciating risks – he took them to calm himself down.
Ratio: A D may be deemed to be involuntarily intoxicated despite knowingly taking a drug where the drug itself is a non-dangerous drug and the D’s reaction is unpredictable and not normally associated with the drug.
Cof A found question of whether or not it was reckless to take the drugs in this way should have been left to the jury to decide and it was not. Crucial elements appear to be that it was non-dangerous drug and D’s reaction was unpredictable and not one that is normally associated with the drug.
R v Kingston
Must still lack MR of offence. If his argument is - I would not have done that if I had not had that drink/drug forced on me but I accept that I still had the mens rea for the crime when I did it - he is liable. His involuntary intoxication may affect the sentence he gets but he is still guilty of the offence – as decided in Hof L case of Kingston.
R v Allen
Definition of Voluntary intoxication – anything not involuntary, including if the defendant knew he was drinking but underestimated the effect
DPP v Majewski
D committed a series of assaults while under the influence of drugs and alcohol; attacked landlords and several customers at a public house; police officer and police inspector at the station; charged and convicted of s47 offence, intoxication not a defence
Ratio: voluntary intoxication is no defence to crimes requiring only basic intent, the MR requirement for these being satisfied by the reckless behaviour of intoxicating oneself, the defence will only be valid for crimes of specific intent where nothing less than intention will suffice for MR.
R v Heard
D convicted of sexual assault; argues he was too drunk to form requisite MR of intentional touching; held that sexual touching was not a crime of specific intent and his defence was not valid
Ratio: Sexual touching is a crime to which voluntary intoxication will not provide a defence.
Note:
CoA said ‘properly understood’ distinction between offences of specific intent and basic intent was that specific intent crimes required proof of an ulterior intent (ie where an element of the mens rea goes beyond the actus reus
cases added confusion regarding basic and specific intent crimes – Majewski should be followed and Heard used with regards to sexual touching specifically as a basic intent crime.
