Sexual Offences - Cases

Question 1

Sexual Offences Act 2003 - section 1

Answer 1

1. Rape

(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 the circumstances, including any steps A has taken to ascertain whether B consents.
(3) Sections 75 and 76 apply to an offence under this section.
(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.

Question 2

Sexual Offences Act 2003 - section 2

Answer 2

2. Assault by penetration

(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else,
(b) the penetration is sexual,
(c) B does not consent to the penetration, and
(d) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
(3) Sections 75 and 76 apply to an offence under this section.
(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.

Question 3

Sexual Offences Act 2003 - Section 3

Answer 3

3. Sexual assault

(1) A person (A) commits an offence if—
(a) he intentionally touches another person (B),
(b) the touching is sexual,
(c) B does not consent to the touching, and
(d) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
(3) Sections 75 and 76 apply to an offence under this section.

(4) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years.

Question 4

Sexual Offences Act 2003 - Section 4

Answer 4

4. Causing a person to engage in sexual activity without consent.

(1) A person (A) commits an offence if—
(a) he intentionally causes another person (B) to engage in an activity,
(b) the activity is sexual,
(c) B does not consent to engaging in the activity, and
(d) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
(3) Sections 75 and 76 apply to an offence under this section.

(4) A person guilty of an offence under this section, if the activity caused involved—
(a) penetration of B’s anus or vagina,
(b) penetration of B’s mouth with a person’s penis,
(c) penetration of a person’s anus or vagina with a part of B’s body or by B with anything else, or
(d) penetration of a person’s mouth with B’s penis,
is liable, on conviction on indictment, to imprisonment for life.

(5) Unless subsection (4) applies, a person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years.

Question 5

The definition of ‘sexual’ - SOA 2003

Answer 5

> Section 78:
“Sexual”
-For the purposes of this part, penetration, touching or any other activity is sexual if a reasonable person would consider that—
(a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.

Question 6

The definition of ‘sexual’ - case law

Answer 6

> R v H [2005] EWCA Crim 732.
Clarified that the meaning of ‘sexual’ for the purposes of s78 Sexual Offences Act 2003 is subject to a two-stage test.
D told V ‘do you fancy a shag’ then grabbed her trousers in an attempt to pull her close, V managed to get away.
D was charged with sexual assault.
D contended that touching of pants did not amount to ‘touching’ under s3 Sexual Offences Act (SOA) 2003 and it was not sexual in nature under s78 SOA 2003.
CA dismissed appeal as although the judge erred in his direction by not adopting a two-stage approach in his direction, the conviction is safe.
Lord Woolf CJ:
-Where a person is wearing clothing, that touching of the clothing will constitute touching for the purposes of s3 SOA 2003.
-The jury should have to consider whether nature was sexual under two-stage test required by s78(b) SOA 2003:
1. Was the touching sexual by its nature? If yes move on to question 2 (Objective test)
2. Was the touching in fact sexual based on its purpose or the circumstances? if yes, it is sexual, if no it is not sexual (Subjective test).

Question 7

Consent in sexual offences - general

Answer 7

1. AR - was V in fact consenting?

2. MR - D may argue that they believed V was consenting.

Question 8

MR of consent - case & statute

Answer 8

> For the old law that 2003 SOA was designed to replace, consider Morgan [1976] AC 182 and contrast to s 1(1)(c) and s 1(2) of the 2003 Act.

> Section 75 and 76 of the SOA 2003.

> R v B [2013] EWCA Crim 3

Question 9

MR - defendant’s belief in consent - old law - Morgan

Answer 9

> DPP v Morgan [1976] AC 182.
The defendant invited his friends over to have sexual intercourse with his wife. He told them that any signs of struggle were not to be seen as a lack of consent and that she enjoyed it.
The men were convicted of rape, while Morgan was convicted of aiding and abetting his wife. The men had argued that they had the honest belief that the complainant had consented to sexual intercourse.
The issue in this case was concerning whether there could be a conviction for rape if the defendant honestly believed that the woman consented to sexual intercourse, if his belief was not based on reasonable grounds.
It was held that as long as a belief was genuine and honest pertaining to consent, it did not have to be a reasonable belief for a defence to rape.
The focus was on the MR of rape; there had to be an intention to commit the crime, as well as a lack of consent.
There was a requirement to know the woman had not consented or reckless to whether she did.
Despite this decision, the conviction was upheld, as no reasonable jury would have found them not guilty, even if directed correctly by the judge.
The complainant had clearly communicated her lack of consent for sexual activity in this case.

Question 10

MR - defendant’s belief in consent - R v B

Answer 10

> R v B [2013] EWCA Crim 3.
The test for reasonable belief in consent under the SOA is objective and mental illness of the defendant should not be taken into account.
D was convicted of raping his partner.
D was a paranoid schizophrenic and did so as he believed he had ‘sexual healing power’.
The judge directed the jury to ignore D’s mental illness in determining whether he had reasonable belief in his partner’s consent for the purposes of s1(1) Sexual Offences Act 2003.
D appealed on the ground that the judge misdirected the jury.
CA dismissed appeal.
Hughes LJ:
-On the facts medical evidence showed that D’s condition did not impair his ability to understand whether or not his partner consented.
-But even if it did, such a delusional belief cannot in law render reasonable a belief that his partner was consenting when in fact she was not.
-Unless the state of mind amounts to insanity in law, a belief in consent arising from mental illness must be judged by objective standards and not by taking into account the mental illness.
-However, there might be cases where the defendant’s personality or abilities are relevant, such as if they impede his ability to recognise social cues.
Hughes LJ seemed to acknowledge that it would be difficult to draw the line between what is a relevant lack of ability and an irrelevant mental illness – one such case would be where the inability to recognise social cues results from low intelligence and he settled on saying that such a case will be decided on the specific facts.

Question 11

Consent - SOA 2003 - AR & MR

Answer 11

> Sections 74 and 75 and 76.

Question 12

SOA 2003 - Section 74

Answer 12

> “Consent”
-For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.

Question 13

SOA 2003 - Section 75

Answer 13

> Evidential presumptions about consent:

(1) If in proceedings for an offence to which this section applies it is proved—
(a) that the defendant did the relevant act,
(b) that any of the circumstances specified in subsection (2) existed, and
(c) that the defendant knew that those circumstances existed, the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.

(2) The circumstances are that—
(a) any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him;
(b) any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person;
(c) the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act;
(d) the complainant was asleep or otherwise unconscious at the time of the relevant act;
(e) because of the complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented;
(f) any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.

(3) In subsection (2)(a) and (b), the reference to the time immediately before the relevant act began is, in the case of an act which is one of a continuous series of sexual activities, a reference to the time immediately before the first sexual activity began.

Question 14

SOA 2003 - Section 76

Answer 14

> Conclusive presumptions about consent

(1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed—
(a) that the complainant did not consent to the relevant act, and
(b) that the defendant did not believe that the complainant consented to the relevant act.

(2) The circumstances are that—
(a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
(b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.

Question 15

AR Consent - old law case

Answer 15

Olugboja

Question 16

AR - Consent - old law case - olugboja

Answer 16

> R v Olugboja [1982] QB 320, [1981] 3 W.L.R. 585.
Submission (i.e. lack of physical resistance) to sexual intercourse does not equate consent.
V’s friend was raped by D’s friend.
D asked V to take off her trousers.
D made no direct threat and V neither screamed nor struggled.
The judge directed the jury to consider whether V had consented despite the lack of physical resistance.
D was convicted for rape and appealed against the direction.
CA dismissed appeal. There was no consent.
Dunn LJ:
-Lack of consent is not only limited to situations where there is force, fear or fraud.
-“Every consent involves a submission, but it by no means follows that a mere submission involves consent.”
-In case where threats do not involve violence or the fear of it, the jury should concentrate on state of mind immediately before the act, having regard to all the circumstances, in particular the events leading up to the act and her reactions which show impact on her mind.

Question 17

AR - Consent - Bree

Answer 17

> R v Bree [2007] EWCA Crim 804.
Intoxication does not automatically vitiate consent under s74 Sexual Offences Act 2003, whether it did so is a question of fact on the state of mind of the complainant.
V was engaged in sex with D while highly intoxicated from drink.
D argued though V was drunk, she was lucid enough to consent.
D was convicted of rape.
D appealed on the basis that judge had made no reference on the ability to consent while intoxicated.
CA allowed appeal.
Where a person loses their capacity to consent due to intoxication, they indeed cannot consent.
However, it is possible that a person may be heavily intoxicated, having voluntarily consumed a large quantity of alcohol, and still be capable of deciding to have intercourse.
Further, the specific facts of each case must be examined in deciding whether consent is deemed to have been given, alongside the mental states of the defendant and complainant.
Simply being intoxicated does not remove one’s ability to consent, and equally, simply to be conscious does not mean one has the capacity to consent.
R v Bree has been followed in subsequent case law and remains valid.
Further, it has had impact on the Code for Crown Prosecutors, which was subsequently updated to emphasise the Appeal Court’s findings.
The Code now reminds prosecutors to pay particular attention to all the relevant facts in a specific case in assessing a person’s capacity to consent in a rape case involving intoxication due to alcohol or drugs.
The benefits of this approach have been stressed by other commentators, such as the highly-regarded Rook & Ward who note that rape cases involving heavy intoxication by either one or both parties tend to be “so fact-specific, there are dangers to slavishly following a prescriptive specimen direction.
However, others e.g. Wallerstein, Simpson & Elvin, argue that the current definition and construction of consent under the Sexual Offences Act 2003 is somewhat weak and is failing to provide adequate protection and justice to the victims of sexual offences.

Question 18

AR - Consent - Ciccarelli

Answer 18

> R v Ciccarelli [2011] EWCA Crim 2665.
Under s75 Sexual Offences Act 2003, evidence of reasonable belief in consent must be realistic before the issue is left to the jury to decide.
D and his girlfriend brought back a friend (V) to their apartment after party.
D sexually assaulted V while she was asleep.
D gave evidence that he did so believing that V would consent based on a single advance V made towards him earlier.
The trial judge held that the evidential presumption in s75 SOA 2003 applied and D’s evidence was insufficient raise an issue as to whether he reasonably believed that V had consented.
D appealed on the basis that his evidence was sufficient to raise an issue that was for the jury to decide.
CA dismissed appeal.
Lord Judge CJ:
-“before the question of the appellant’s reasonable belief in the complainant’s consent could be left to the jury, some evidence beyond the fanciful or speculative had to be adduced to support the reasonableness of his belief”.
-D and V were effectively strangers, D’s belief is effectively based on a single advance, the judge was justified in concluding that there was insufficient evidence to raise an issue (i.e. the evidence was incapable of supporting reasonable belief in V’s consent).

Question 19

AR - Consent - Ali

Answer 19

> R v Ali [2015] EWCA Crim 1279.
Where a vulnerable and immature individual is groomed, there may be no true consent to sexual activity, whether there is consent is for the jury to decide.
Ds were charged with rape for grooming young girls from troubled backgrounds for sexual purposes.
The prosecution argued that after grooming, the girls became sexually compliant and any consent was not genuine.
Ds appealed on the basis that the jury was wrongly directed to consider whether the girls had truly consented.
CA dismissed appeal - Ds were rightly convicted.
Fulford LJ:
-When vulnerable people are groomed for sexual exploitation, compliance can mask the lack of true consent on the part of the victim.
-Although grooming does not necessarily vitiate consent, it starkly raises the possibility that a vulnerable or immature individual was led to acquiesce rather than consent.
-Grooming has the tendency to limit or subvert the free will of the victim by creating an environment of dependency.

Question 20

AR - Consent - new cases list

Answer 20

> Bree
Ciccarelli
Ali

Question 21

The problem of mistaken consent - old law cases

Answer 21

> Flattery
Williams
Linekar

Question 22

The problem of mistaken consent - new cases

Answer 22

>Jheeta
>Assange
>Bingham
>McNally
>Monica
>Lawrence

Question 23

The problem of mistaken consent - old law cases - Flattery

Answer 23

> R v Flattery (1877) 2 QBD 410.
At common law, mistake as to the nature a sexual act vitiates consent.
D pretended to be a doctor at a market stall in York
V went to him, with her mother, as she suffered from fits.
D had sex with V, under the guise of carrying out an operation.
D was guilty of rape as there had been no consent.
Mellor J:
-“It is said that submission is equivalent to consent, and that here there was submission: but submission to what? Not to carnal connection”.

Question 24

The problem of mistaken consent - old law cases - Williams

Answer 24

> R v Williams [1923] 1 KB 340.
D gave singing lessons and had sex with V under pretence that it would improve her breathing.
D was convicted of rape.
V did not consent to the intercourse since it was obtained by false pretences, Flattery was followed.

Question 25

The problem of mistaken consent - old law cases - Linekar

Answer 25

> R v Linekar [1995] 3 All ER 69.
At common law, fraud which did not induce a mistake about the nature of the act or of the identity of the man does not vitiate consent.
D hired a prostitute, but did not pay her after.
D was convicted of rape.
CA allowed appeal & overturned conviction.
There was no mistake as to the nature of the act which was sexual nor the identity of D.
At common law mistake as to purpose did not vitiate consent unlike the current law under s76 Sexual Offences Act 2003 where deception as to purpose raises a conclusive presumption.
In Jheeta the Court of Appeal at [28] stated that there was no deception as to purpose in Linekar either and thus s76(2)(a) would not apply.

Question 26

The problem of mistaken consent - new cases - Jheeta

Answer 26

> R v Jheeta [2007] EWCA Crim 1699, [2008] Crim. L.R. 144.
Deception on the situation that were threatening did not fall within the meaning of ‘nature and purpose’ in s76 Sexual Offences Act.
D and V were in a sexual relationship.
After V broke off the relationship, D pretended to be police officers in text messages to V, which demanded that she to have sex with him, threatening her with a fine if she refused.
D was charged with rape.
D and V were in a sexual relationship.
The offence of rape under s.1 of the Sexual Offences Act 2003 requires an absence of consent on the part of the victim, and the absence of a reasonable belief in consent on the part of the defendant.
S.76 imposes a conclusive presumption of the absence of consent and the absence of a reasonable belief in consent in circumstances where the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act.
The issue in this case was the identity of the ‘relevant act’ to which the deception had to relate.
The Court of Appeal held that the ‘relevant act’ to which s.76 referred to was the act of vaginal, anal or oral penetration. As such, for s.76 to apply, the victim had to be deceived as to the nature and purpose of the sex itself, and not merely deceived as to extraneous circumstances. For this reason, it was held that the application of s.76 would be rare, and it did not apply in this case.
However, as D had admitted that V was not truly consenting to many of their sexual encounters, the rape convictions were held to be safe regardless of whether the s.76 presumption applied. The convictions were therefore upheld.
Judge LJ:
-S76 raises conclusive presumptions that ‘require the most stringent scrutiny.’
-S76(2)(a) only applied to deception on the nature or purpose of intercourse and no conclusive presumption arose when the complainant is deceived in some other way such as ‘disingenuous blandishments of or common or garden lies’.
-In this case, V was deceived not about the nature or purpose of the act of intercourse but about the situation in which she found herself.
-However, V had not consented to intercourse for the purposes of s74 and D was aware she had not consented.

Question 27

The problem of mistaken consent - new cases - Assange

Answer 27

> Assange v Swedish Prosecution Authority [2011] EWHC 2849.
Mr. Assange visited Sweden to give a lecture.
He had sexual relations with two women there.
In the home of the injured party, Assange deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep, was in a helpless state.
It is an aggravating circumstance that Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, still consummated unprotected sexual intercourse with her.
The sexual act was designed to violate the injured party’s sexual integrity.
Mr. Assange was accused of rape.
Allegedly, the women agreed to sex on the condition Mr. Assange wear a condom. He did not do so throughout intercourse.
Although the English courts had previously ruled that one cannot give conditional consent, in order to be able to allow extradition to Sweden, the Supreme Court ruled that his actions would constitute a crime under English law – thus allowing conditional consent to become valid in English law.

Question 28

The problem of mistaken consent - new cases - Bingham

Answer 28

> R v Bingham [2013] EWCA Crim 823, [2013] 2 Cr. App. R. 29.
A strict interpretation of s76 Sexual Offences Act 2003 must be adopted pursuant to Jheeta.
Deception as to peripheral matters, such as identity and consequences of non-compliance, must be distinguished from deception as to purpose.
D, pretending to be other men, threatened his girlfriend, V, that he would email photographs of her to her employers if she did not perform sexual acts on webcam.
D was charged with causing a person to engage in sexual activity without consent.
Did the conclusive presumption under s76 Sexual offences Act 2003 apply?
CA allowed appeal - s. 76 conclusive presumption did not apply.
Hallett LJ:
-The definition of purpose under s76 should not be defined too widely, s76 must be strictly construed as it effectively removes the only line of defence to a criminal charge.
-‘If there is any conflict between the decisions in Jheeta and Devonald, we would unhesitatingly follow Jheeta’.
-D’s purpose had been sexual gratification and V was aware of that.
-Deception to a ‘peripheral matter’ will not amount to deception of purpose under s76.
-However, the prosecution has a strong case that there was no consent under s74 if they can prove that V only complied as she was blackmailed.

Question 29

The problem of mistaken consent - new cases - McNally

Answer 29

> McNally [2013] EWCA Crim 1051; [2014] QB 593.
Deception as to gender vitiates consent.
A teenage woman impersonated a teenage man and secured the consent of another young woman on that basis to engage in digital penetrative activity.
Held: A victim’s consent to a sexual penetration might be destroyed by a defendant’s deception as to gender. >Vitiating deceptions are not limited to deceptions relating to features of the offence.
Sir Brian Leveson P, giving the judgment of the court, concluded at para. 26 that:
The nature of the sexual act was ‘on any common-sense view, different where the complainant is deliberately deceived by the defendant into believing that the latter is male.’
The complainant ‘chose to have sexual encounters with a boy and her preference (her freedom whether or not to have a sexual encounter with a girl) was removed by the appellant’s deception.’

Question 30

The problem of mistaken consent - new cases - Monica

Answer 30

> R (Monica) v DPPP [2018] EWHC 3508 (Admin).
Deception as to identity did not undermine consent.
The claimant had been an environmental campaigner.
She had had a sexual relationship with a man who was unknown to her an undercover police officer.
She now challenged the decision not to prosecute him for rape.
Held: Her claim failed.
Case law suggested that no prosecution had ever been undertaken where the deception said to undermine the consent was so closely related to the sexual act itself.
The law of consent under the Sexual Offences Act 2003 was considered in R (Monica) v DPP [2018] EWHC 3469 (QB). The decision arose from the unsuccessful judicial review of a decision by the CPS not to prosecute undercover police officers who had infiltrated a protest group and entered into sexual relationships.
The court held that a complainant’s lack of knowledge as to the officer’s true identity did not vitiate her consent to sexual relations.
The court noted a consistent line of authority under common law and the Sexual Offences Act 1956 that only pressure and coercion are the two frauds are capable of vitiating consent: fraud as to the nature of the sexual act (which appears to include deception as to gender at birth) and fraud as to the identity of the perpetrator through impersonation.
It held there is no authority that indicates or suggests otherwise.
Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin) indicates that deception that is closely connected with ‘the nature or purpose of the act’, because it relates to sexual intercourse itself rather than the broad circumstances surrounding it, is capable of negating a complainant’s free exercise of choice.
That may represent a modest extension in the way in which the law examines ‘consent’ in the context of sexual offending, but did not support the profound change in the approach to consent argued for.
That is to say the matter to which the deception related had to be sufficiently serious in objective terms as to be capable of being regarded as relevant to a woman’s decision-making and that, subjectively, the deception went to a matter which the woman regarded as critical or fundamental to her decision-making.

Question 31

The problem of mistaken consent - new cases - Lawrence

Answer 31

> Can a lie about fertility could negate consent and therefore turn sexual intercourse into an act of rape?
The fully capacitated complainant here agreed to sexual intercourse with the appellant without imposing any physical restrictions.
The man told her he had had a vasectomy. She agreed both to penetration of her vagina and to ejaculation without the protection of a condom.
She got pregnant and accused him of rape.
In so doing she was deceived about the nature or quality of the ejaculate and therefore of the risks and possible consequences of unprotected intercourse.
The issue was whether the appellant’s lie was sufficiently closely connected to the nature or purpose of the sexual act, rather than the broad circumstances surrounding it. In this case, it was not.
The Court stated that a lie about fertility is different from a lie about whether a condom is being worn during sex, different from engaging in intercourse not intending to withdraw having promised to do so, and different from engaging in sexual activity having misrepresented one’s gender.
The Court found that the lie about fertility was not capable of negating consent and quashed the man’s convictions relating to the fertility lie. It was the consequences of the sexual act that was agreed to that had changed (i.e. the risk of pregnancy), not the act itself.

Question 32

The problem of mistaken consent - old/new case - Devonald

Answer 32

> R v Devonald [2008] EWCA Crim 527.
This case is a departure from R v Jheeta by giving a wide meaning to deception as to purpose under s76 Sexual Offences Act 2003, and was later rejected in R v Bingham.
D thought that his daughter’s ex-boyfriend (V) had mistreated her and sought revenge.
D pretended to be 20-year-old girl on the web and persuaded V to masturbate on webcam so as to release the footage on the internet.
D was charged with causing a person to engage in sexual activity without consent under s4 Sexual Offences Act 2003.
Did the conclusive presumption under s76 Sexual Offences Act 2003 apply?
CA dismissed appeal - s76 applied.
Leveson LJ:
-There was no deception in the nature of the act which was undoubtedly sexual.
-However, there was deception in the purpose, which was not sexual gratification but rather for revenge by releasing the footage on the web.