Sexual Offences - Key Cases and Legislation Flashcards
Rape under s2
Criminal Law (Rape) Act 1981, section 2:
2(1) A man commits rape if—
(a) he has sexual intercourse with a woman who at the time of the intercourse does not consent to it, and
(b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she does or does not consent to it
What are the 3 elements of s2 Rape Actus Reus
3 elements:
● Sexual intercourse took place as defined
● Between a man and a women
● Without consent (of the woman)
Penetration of the vagina with a penis case law
● It is not necessary to prove ejaculation: Offences Against the Person Act 1861, s. 63
● Slight penetration can suffice: People (AG) v Dermody [1956] IR 307
Man and women
● the offence can only be committed by a man against a woman.
● Gender Recognition Act 2015, s. 23: it is possible to prosecute a transgender woman for rape, or a transgender man who has undergone gender reassignment surgery
DPP v C’OR
Charleton J
- AG v Dermody and R v Kaitamaki accepted
- Archibold and Russell
- Consent stuff
- Mental element – Know or reckless; Recklessness is the taking of a serious and unjustified risk adverted to; Hardiman J in The People (DPP) v Cagney and McGrath
- The possibility that a woman was not consenting actually occurred in the mind of the accused. Where an accused decides to proceed with or continue with intercourse in spite of adverting to that risk; that is recklessness.
- Genuine but unreasonable belief – Jury decide on facts
- If an accused is aware of the possibility that a woman may not be consenting, any conscious disregard of this advertence to that possibility means that for him to proceed is for him to act recklessly; and thus criminally.
Legal definition of consent
- Criminal Law (Rape) (Amendment) Act 1990, s. 9 as amended by section 48 of the Sexual Offences Act 2017, s.48:
- 9(1) A person consents to a sexual act if he or she freely and voluntarily agrees to engage in that act.
- 9(2) A person does not consent to a sexual act if
(a) he or she permits the act to take place or submits to it because of the application of force to him or her or to some other person, or because of the threat of the application of force to him or her or to some other person, or because of a well-founded fear that force may be applied to him or her or to some other person..
(b) he or she is asleep or unconscious,
(c) he or she is incapable of consenting because of the effect of alcohol or some other drug …
(d) he or she is suffering from a physical disability which prevents him or her from communicating whether he or she agrees to the act,
(e) he or she is mistaken as to the nature and purpose of the act …
(f) he or she is mistaken as to the identity of any other person involved in the act,
(g) he or she is being unlawfully detained at the time at which the act takes place …
(h) the only expression or indication of consent or agreement to the act comes from somebody other than the person himself or herself.
s9(2)(a) Case law - Threat or fear
- R v Malone [1998] 2 Cr App R 447:
‘Submitting to sex because can’t physically resist due to alcohol not consent and no right-thinking person would say it is consent - R v Olugboja [1982] QB 320 - ‘Every consent involves a submission, but it by no means follows that a mere submission involves consent.’
Mistake case law
- Nature and quality of the act - R v Flattery; R v Williams
- Identity of the person - DPP v C; R v McNally
s9(4) 1990 Act
- Consent to a sexual act may be withdrawn at any time before the act begins, or in the case of a continuing act, while the act is taking place.
- If the accused continues to penetrate the complainant after consent has been withdrawn, this will amount to the actus reus for rape Kaitamaki [1984] 2 All ER 435.
s9(5) 1990 Act
9(5) Any failure or omission on the part of a person to offer resistance to an act does not of itself constitute consent to that act.
- R v Olugboja [1982] QB 320; DPP v MC [2018] IECA 137; DPP v ED [2018] IECA 185
DPP v MC [2018] (CoA)
Birmingham J
- Accept 1990 Act no resistance necessary provision
- Respondent said to wife “I am going to rape you”
- Charleton J writings - “Accused has a responsibility towards the victim to cease his attentions, if he is aware that the victim may not be consenting, or at least to make an enquiry, and that if he continues with the act having this possibility in mind, he will be guilty of a high degree of culpability. Reckless if aware of a possibility of the victim not consenting; Any risk of non-consent is substantial because a simple enquiry can, if it is unfounded, dispel it.”
- Reckless if someone decides to have sex with another person, and couldn’t careless about whether the other person is consenting or not, or is indifferent to the wishes and feelings of the other
DPP v ED [2018] (CoA)
Mahon J:
- Accepted resistance rule
s2 Rape Mens Rea
- An intention to have sexual intercourse without the consent of the victim or, being reckless as to whether the victim consented or not.
- Mistaken belief as to consent defence - DPP v Morgan but RG in s2(2) 1981 Act (as amended); DPP v C’OR - What the accused actually believed
R v Olugboja [1981] (CCA)
Dunn LJ
- Does rape require proof that the victim’s consent was vitiated by force, the fear of force or fraud or is it sufficient to prove that the victim did not consent?
- R v Morgan - Need force, fear or fraud
- LC recommendation to remove this requirement and removed in 1976
- Consent vs submission; force or fear of force – Evidence of such shows absence of consent; No force or threats – “Concentrate on the state of mind of the victim immediately before the act of sexual intercourse, having regard to all the relevant circumstances, and in particular the events leading up to the act, and her reaction to them showing their impact on her mind. Apparent acquiescence after penetration does not necessarily involve consent, which must have occurred before the act takes place”
R v Malone [1998] (CCA)
Roche LJ
- R v Olugboja – Consent vs submission; force or fear of force – Evidence of such shows absence of consent; No force or threats – “Concentrate on the state of mind of the victim immediately before the act of sexual intercourse, having regard to all the relevant circumstances, and in particular the events leading up to the act, and her reaction to them showing their impact on her mind. Apparent acquiescence after penetration does not necessarily involve consent, which must have occurred before the act takes place”
- “No requirement that the absence of consent has to be demonstrated or that it has to be communicated to the defendant for the actus reus of rape to exist” - Parliament in defining rape deliberately made no mention of a complainant having to resist unwanted sexual intercourse”
- Evidence – Threats, force, age, drugs, physical or mental disability, asleep, identity trick – “Demonstrate that it is not the law that the prosecution in order to obtain a conviction for rape have to show that the complainant was either incapable of saying no or putting up some physical resistance or did say no or put up some physical resistance.”
- ‘Submitting to an act of sexual intercourse, because through drink (because of alcohol) she was unable physically to resist though she wished to, is not consent. If she submits to intercourse because of the drink she cannot physically resist that, of course, is not consent. No right-thinking person would say that in those circumstances she was genuinely consenting to what occurred. It would be without her consent.’
Rape under s4
Criminal Law (Rape) (Amendment) Act 1990
- s4(1) - “Rape under section 4” means a sexual assault that includes:
a) penetration (however slight) of the mouth or of the anus by the penis; or
b) penetration (however slight) of the vagina by an object held or manipulated by another person
- Note - Does not cover digital penetration or penetration of the anus with an object
- Mens rea:
Part 1 = Intention to commit the sexual assault
Part 2 = Intention or recklessness as to whether the victim consents to the act
- Note - Not a gender specific offence
- Same s9 consent issues
Sexual Assault Definition
- Criminal Law (Rape) (Amendment) Act 1990
2. (1) The offence of indecent assault upon any male person and the offence of indecent assault upon any female person shall be known as sexual assault - Two aspects: assault and indecency.
- Doolan v DPP [1992 2 IR 399
- DPP v EF, unrep SC 24 Feb 1994
What is the actus reus of sexual assault?
Sexual Assault: What is the actus reus?
1. Assault: (Needs to be shown)
○ Non-Fatal Offences Against The Person Act 1997 – Same threshold).
○ DPP v Brown [2018] IESC 67, the absence of consent
- Indecency: (Needs to also be shown)
○ R v George [1956] Crim LR 52: circumstances of indecency towards the victim. (About what happens to the victim)
○ R v Court [1989] AC 28 - ‘conduct that right-thinking people will consider an affront (to the sexual modesty of a woman)’
Consent as a defence to sexual assault
- DPP v WN, unrep CCA 20 Noc 2003: SA against a minor (under 15) a child cannot give valid consent to sexual assault.
- R v Tabassum [2000] Cr App R 328. Element of mistake – Mistaken as to identity of person and nature of the Act. Consent must relate to the nature and quality of the act.
What is the mens rea of sexual assault?
- Seems to be intention rather than recklessness: R v Court.
- DPP v Babayev [2019] IECA 198: intention necessary for both the assault and the indecency.
- DPP v MX [2020] IECA 46: Lack of consent is part of the actus reus of assault so recklessness as to that lack of consent is also part of the mens rea of sexual assault.
Aggravated Assault
- S3(1) 1990 Act - “aggravated sexual assault” means a sexual assault that involves serious violence or the threat of serious violence or is such as to cause injury, humiliation or degradation of a grave nature to the person assaulted
- DPP v Naughton, unrep CCA 18 May 1999 – Aggravating factors included threatening to kill the victim, choking the victim, kicking the victim in the head, hair-pulling
R v Court [1988] (HoL) - Indecency for sexual assault
Lord Griffiths:
- “Conduct that right-thinking people will consider an affront to the sexual modesty of a woman”
- Offence cannot be committed accidentally (Intention - Accepted)
- Extra mental element in comparison to common assault - An intent to do something indecent to the woman in the sense of an affront to her sexual modesty/an intent to do that which the jury find indecent.”
Pratt case and accepted by professor J Smith - Prove indecent intention
- Rejects recklessness as to indecency - Accidental indencency but then not guilty
- Motive for assault can be to obtain sexual gratification but need not necessarily be so e.g. stripping for revenge or humiliation
- Consider purpose of action - Unconscious woman private parts doctor vs stranger
Lord Ackner:
- Sherras; Sweet; - MR presumption - Need additional mental element beyond accident given stigma of offence conviction
- Rushing out of train analogy
- First stage = Prove assault; Faulkner v Talbot (battery or fear)
- R v George - Streatfeild J. ruled that an assault became indecent only if it was accompanied by circumstances of
indecency towards the person alleged to have been assaulted; no need to be aware or apprehend indecency (asleep or unconscious)
- R v Pratt - Prove indecent intention
Lord Goff:
- s52 1861 Act - Assault (battery or apprehended)
- Beal v Kelly - Deciding whether indecent, look to assault and its circumstances
- Defendant should have been aware of the existence of any circumstances which are relied upon as rendering the assault indecent
DPP v Doolan [1992] (HC)
O’Hanlon J:
- S2(1) 1990 Act
- Assault - Physical force or believe threat of it
- Indecent assault - Physical or threatened unlawful force
DPP v Babayev [2019] (CoA)
Kennedy J:
- “Assault accompanied by circumstances of indecency”.
- “What amounts to circumstances of indecency depends upon the prevailing social standards”.
“Individual intentionally or recklessly assaults another which includes the unlawful touching of another without consent and indeed it is not necessary that any physical touching actually take place”.
- “A sexual assault is an assault accompanied by circumstances which are objectively indecent - 1. Individual intentionally assault the complainant; 2. Assault itself or the assault and the accompanying circumstances are objectively indecent; 3. Accused intended to commit an indecent assault”
