Sexual offences - rape Flashcards
1
Q
Definition of rape
A
- Section 1 Sexual Offences Act 2003
o (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
2
Q
Abolition of marital exception to rape (2)
A
- R v R
o Before 1991, rape within marriage was lawful – consent to marriage meant consent to rape - CR v UK
o ECtHR confirmed R v R saying that even if something is not written in statute, society had changed and there rape within marriage was unlawful
3
Q
Actus reus for rape
A
- Section 1(1)(a) and (b)
o D penetrates the vagina, anus or mouth of V with his penis and V does not consent to the penetration - Reflect reality that majority of sexual offences were perpetrated by men against women – recognises gendered reality. Also is in line with what general public would think the crime of rape is.
4
Q
Actus reus for rape - penetration (1 case, 1 statute)
A
- Hughes
o Penetration, even if slight still counts - Section 79(2)
o Is a continuing act – even if someone consents initially, they can change their mind in process so continuing would still be rape
5
Q
Mens rea for rape
A
- D intended to penetrate the vagina, anus or mouth with his penis and
- D did not reasonably believe that V consented to the penetration
6
Q
Mens rea for rape - reasonable belief in consent (3)
A
- Sexual Offences Act 2003, s1(1)(c)
o Previous law: D must lack honest belief in consent
o New Law: A does not reasonably believe B consents - SOA 2003, s2
o 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 - R v B
o D had paranoid schizophrenia. Appealed against conviction of rape as his delusional state led him to reasonably belove that his partner was consenting. Court said this type of delusion should not be taken into account when determining if a belief is reasonable
7
Q
Previous law for rape - honest belief in consent (1)
A
- DPP v Morgan
o Husband and wife lived on army base. Victim’s husband told friends that they should have sex with his wife and said she would resist but they should carry on anyway. Men were charged with rape. Question was does the mens’ belief in consent have to be reasonably held or is an honest belief enough. HofL held an honest belief was enough.
8
Q
Context for change to reasonable belief in consent for rape
A
o Masculine perspective on the sexual activity – this was criticised in DPP v Morgan
o Low convictions rate - Could be situations where D not prosecuted as jury believed that D honestly belived there was consent but from victim’s perspective, they may still have not consented and so did believe they were raped – the shift in the law to reasonable belief was a way to accommodate for this concern
o Low level of reporting
9
Q
Impact of change from honest belief to reasonable belief for rape (1 academic)
A
- Temkin and Ashworth – impact of change
o Change does not really make a difference - Myths and gendered assumptions around sexual behaviour may still not be filtering out of criminal system and may still influence when it is reasonable to belief consent
10
Q
Definition for consent for rape
A
- V must have not consented and
- D must have held no reasonable belief in consent
11
Q
s76 - conclusive presumptions for consent and rape (2)
A
- If facts are proved, this is conclusive that there was no consent and no reasonable belief in consent, so defence cannot rebut it
- R v B
o Deception as to nature and purpose of the act
o If someone has sex but does not disclose STI, this does not mean consent - R v Jheeta
o D appealed against conviction of rape on grounds that he did not deceive the complainant as to nature or purpose of act.
o They had been in a sexual relationship. When relationship broke down, Jheeta had sent threatening messages to complainant. She told D about this and said he would go to police on his behalf. D pretended to be a police officer and had told her that if did not have sex with D, she would have to pay fine to D for causing him distress.
o Had there been deception as to nature or purpose of act? – no deception as had still known that she was having sexual activity. There was also no presumption that complainant lacked consent and D had reasonable belief of consent. However D could still be convicted under general definition of consent – even if a case does not fit into presumptions, the general definition can still be looked at
12
Q
s75 - evidential presumptions for consent and rape
A
- If certain circumstances exist then B is taken not to have consented and A not to have a reasonable belief in consent unless sufficient evidence is adduced
- Violence and threats of violence,
- Asleep/Unconscious,
- Administering a substance to complainant without consent,
- Stupefied/Overpowered
13
Q
s74 - general meaning of consent for rape - free agreement (6)
A
- Agrees by choice and has freedom and capacity to make that choice
- FREE AGREEMENT
- Malone
o Complainant does not need to demonstrate resistance as consent is an active agreement.
o Does not need to communicate consent, consent cannot be assumed, the D should be looking at positive cues to determine consent rather than resistance or someone not saying no to assume consent - Olugboja
o ‘The issue of consent should be left to the jury on being directed that consent is to be given its ordinary meaning and by way of example – that there is a difference between consent and submission. Every consent involves a submission but it by no means follows that a mere submission involves consent’ - Doyle
o D appealed on conviction that judge should not have given following direction to jury ‘submission means absence of free agreement’ – this confused the jury and should not have been given - R v Kirk
o Economic coercion
o Victim was young woman who had ran away from home and sleeping/living wherever she could find. Did not have any money but knew D had helped her out before. D offered to give her £3.25 if she had sex with him. She agreed. Jury convicted him of rape.
o Judge directed jury that there was difference between consent and non-consensual submission. D appealed that this direction would have confused the jury. CofA said jury would not have been misled – she would not have consented even if she did submit - R v C
o Groomed/frightened into submission
o Appellant appealed against conviction of sexual offences against step daughter. Step daughter was 25 and claimed had been sexually abused by him over previous 20 years. Appellant case was that no physical sexual activity took place until she was over 16 and thereafter they were in consensual sexual relationship. Evidence to show after she was 16 there was consensual sexual activity and she even sometimes initiated it. D appealed on basis that jury should have been directed that there was consent.
o CofA said that jury was entirely open to determine that there had been no free agreement – dominance and control of appellant over step daughter since she was young meant that any sexual activity would be non-consensual - Ali
o Groomed/frightened into submission
o 2 D’s appealing against rape and other sexual offences. CPS set out case that both appellants had targeted young girls from troubled backgrounds and sexually assaulted them. Question was around consent and whether any submission was really free agreement. Consequences of young people being groomed for sexual exploitation masks whether true consent could be given.
o Jury was directed that young people may not understand what they were doing and had been groomed so there was no consent. This direction would not have misled the jury and the D’s convictions were held.
14
Q
s74 - general meaning of consent for rape - capacity to consent (5)
A
- R v C
o In determining whether a person has capacity to consent HofL said that these 3 things must be considered.
1. Whether the person is able to understand the relevant information
2. Whether they are able to weigh up that information e.g. physical nature of sexual activity, risks of pregnancy/STIs etc
3. Whether they can then make choice to consent to sexual activity having considered the factors. - R v Dougal
o Intoxication and capacity to consent
o 2 students both been drinking. Although complainant had gone to police to make report of rape, when went to trial it became clear that she could not remember whether or not she consented due to the alcohol. Judge directed jury to enter not guilty verdict – drunken consent is still consent. Case heavily criticised – it should be up to jury to determine if the person had capacity to consent not the judge - Bree
o Intoxication and consent
o D conviction was quashed because judge had not made clear to jury that even if person is intoxicated, he or she can still consent to sex – at what point does a person become so intoxicated that they lose capacity? – no clear line to determine this, it is for the jury to decide when the victim loses the capacity to consent - Hysa
o Intoxication and consent
o Question over whether complainant could remember anything and therefore whether she consented – judge stopped trial when it became clear that she was very intoxicated and had no clear memory of whether she gave consent or not so insufficient evidence. However trial should have continued as it is up to jury to determine whether she had capacity to consent. - Seedy Tambedou
o Intoxication and capacity to consent
o Basis of not being able to recall consent is not enough for judge to withdraw the case – it is up to jury to still determine if had capacity to consent
15
Q
s74 - general meaning of consent for rape - agrees by choice deception, mistake and informed choices (6)
A
- Regarding a person’s sexual health
o R v Dica
Where a D conceals their HIV status from sexual partner, this would not be rape as person has still consented to sexual intercourse – obiter
o R v B
If complainant does not ask about other persons sexual health and if D does not disclose, there would be no rape even if complainant says they would not consent had they known - Regarding aspects or circumstances of the sexual engagement
o Assange
Question of whether Assange could be extradited to Sweden - Sweden looking to prosecute him of rape. If a woman had agreed to have sex with a person only if they wore a condom, but this person did not use one or removed it part way through, would this amount potentially to rape? – if no, there would be no criminal offence and Assange could not be extradited to Sweden. Court said that this could be rape and jury could determine that victim did not consent and D did not reasonably believe in consent. Expressed condition of sex – this is differentiated from when a partner has not asked about a sexually transmitted infection
o R (F) v DPP
Woman sought judicial review of decision of DPP not to prosecute her former partner of sexual assault. Complainant’s case was that partner had agreed not to ejaculate inside her but against this express condition he did. DPP declined to prosecute on basis that even if facts were proved, it would not constitute rape. In High Court it was said that choice and freedom is needed for consent and if he knowingly and intentionally ejaculated, this may be able to constitute rape.
o R v Lawrence
Man had on number of occasions lied to sexual partners that he had vasectomy and therefore no contraception was needed when he hadn’t. Convicted of rape. Appealed on basis that consent to sexual activity cold not have been vitiated by the lie as the lie as to fertility was not a lie as to sexual intercourse. The vasectomy went to consequences of sexual act i.e. pregnancy and not the nature of the sexual activity itself. Appeal to conviction was successful. - Regarding a person’s gender identity and gender history
o McNally
At time of offences, the D had identified as a male but had been assigned female at birth. Evidence to suggest that at time of offence was unsure of gender identity and was still identifying as a girl and other times identifying as a boy. D met V online and formed a relationship, they agreed to meet and D at time identified as a boy but D did not inform complainant that they had previously identified as a girl and had so-called female genitalia. Developed a sexual relationship and D orally and anally penetrated complainant. Question to CofA was whether gender deception could vitiate consent. CPS argued that this was active and fraudulent deception as complainant identified as heterosexual and did not know D had female genitalia.
CofA held that deception as to gender can vitiate consent
