SOA - summary revision Flashcards
R v Malone [1998]
- Failure to resist doesn’t not constitute a choice to agree
- she was too overwhelmed to say anything
MC v Bulgaria [2005]
- No freedom to agree by choice, he drove her to a deserted place
R v Ciccarelli [2001]
Usually not possible to give future consent, but evidence that it is possible to give “indefinite agreement” (until V revokes it) for couples in an established sexual routine
R v B [2006]
- Agreement for consent is solely on physical acts
- Doesn’t matter that V ‘would not have agreed if she had further information
- HIV deemed irrelevent
Assange v SPA [2011]
- Agreement for consent is solely on physical acts
- BUT if there was verbal communication, then possibly V can give “conditional consent” IF the condition relates to the performance of the act itself (e.g. agreement to sex, conditional use of a condom)
- If D understood importance of condition but still violates it, he immediately offends
IM v LM [2014]
Brain surgery - needs care, unable to make her own decision
- no capacity to agree by choice
R v Bree [2007]
- Unconscious
- to have capacity to agree, V must also have the capacity to withdraw agreement too
Visceral
One does no expect “Weighing of information” when contemplating sexual activity
Even for people of full capacity, it is largely instinctive rather than cerebral
Thus, children have capacity to agree - so we need special offence for those who do the activities with children (s.5 and s.9)
‘Freedom to agree’
R v Olugboja [1982]
R v Olugboja [1982]
The objective test (‘state of mind’ argument)
- a woman who consents because of “reluctant acquiescence” is consenting
- a woman who consents due to “mere submission” is not consenting
- Jury should evaluate V’s own perception; significant pressure is enough for non-consent
- previously, threats of violence and death were all that sufficed
Should consent be a subjective test? (YES)
- Greater involvement in individual cases lead to better decision
- protects the weaker minded and vulnerable that are subject to pressure
- protects sexual autonomy
- consent is subjective anyway
- defendants are already protected in statute; they have to have the mens rea (reasonably believe in non consent)
Should consent be a subjective test? (NO)
- leads to uncertainty
- too little direction for juries
- subjective could mean ‘anything’
- line drawn is too fine
- V’s response to things depends on previous experience so different victims might react to situations completely differently
- jury places own experiences own event so might heavily influence where they draw the line of consent
- one D doing the same thing to 2 people might get prosecuted for 1 but not the other
- juries might use the power (they have certain attitudes and now want to protect sexual autonomy and thus use discretion negatively)
- social prejudices can cause low conviction rates as well as evidential limits
R v Satnam and Kewell [1984]
to believe in consent, you have to be quite sure in your own mind (not just suspect)
R v Whitta [2006]
- remember! just a crown court case
- mistaken identity is not a defence if offender does not take reasonable care to inform himself
Belief in consent
HAS TO BE REASONABLE (objective test)
- drink, or mental disorder are NOT reasonable if nothing else to provide grounds for belief
