SP - Sexual Offences

Question 1

Key stats

Answer 1

• 85k and 12k women and men are raped in England and Wales alone
• 1/2 a million adults are SA’d every year
• only 15% report the crime
• 90% of people raped know the perp
  Source: : ‘An Overview of Sexual Offending in England and Wales’ (a joint official statistics bulletin on sexual violence released by the Ministry of Justice (MoJ), Office for National Statistics (ONS) and Home Office in January 2013)

Question 2

Stats Prosecuting Rape

Answer 2

• 2019 the CPS reported that the number of convictions fell by 26% from 2635 to 1925
• The number of completed prosecutions fell by 33% from 4517 to 3034
• The number of cases charged by the CPS dropped by 38% to 1758

Question 3

S.1 of the SOA 2003; Rape

Answer 3

1) A person commits an offence if
a. he intentionally pentrates any part of V’s
body with his private
b. B doesn’t consent to the penetration
c. D doesn’t reaosnably believe that V consented

2) Whether a belief in reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents

Question 4

Interpretation of S.79(2)(3)(9)

Answer 4

1. S.79(2): penetration is a continuing act from entry to withdrawal
2. S.79(3) References to a part of the body include references to a part surgically construction (Gender reassignment surgery)
3. S.79 (9): Vagina includes vulva

Question 5

Is rape a gendered crime?

Answer 5

“…with his penis” - only man can commit a rape

Question 6

Non-penile penetration

Answer 6

Sovered by s.2 S)A 2003; Assault by penetration

Question 7

Meaning of consent

Answer 7

• S.74 Sexual Offences Act 2003 “A person consents if he agrees by choice, and has the freedom and capacity to make that choice”

Question 8

S.75 Evidential presumptions

Answer 8

These presume that V did not consent (unless evidence is adduced t raise an issue as to whether V consented)

Question 9

Violence Against V

Answer 9

S.75(2)(A) - Any person as the time of the relevant act or immediately before it began, using violence against V, or causing v to fear that immediate violence would be used against V

Question 10

Violence against another

Answer 10

S.75(2)(B) - Any person was, at the time of the relevant act or immediately before it began, causing V to fear that violence was being used or that immediate violence would be used, against another person

Question 11

S.75 (2)(C): Unlawful detention

Answer 11

V was and D was not unlawfully detainted at the time of the relevant act

Question 12

S.75(2)(D)

Answer 12

V is asleep or unconscious

Question 13

75(2)(E)

Answer 13

V is unable to communicate due to a physical disability, V would not be able at the time of the relevant act, to communicate to D whether V consented

Question 14

S.75(2)(F)

Answer 14

Stupefying substances - A person had administered to or caused to be taken by V without V’s consent, a substance…capable of causing or enabling V to be stupefied or overpowered at the time of the act

Question 15

How to rebut S.75 presumptions?

Answer 15

S.75(1)SOA 2003; the complainant is to be taken to not have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented

Question 16

Ciccarelli [2001] EWCA Crim 2665

Answer 16

To rebut evidential presumptions, some evidence to beyond the fanciful or speculative had to be adduced to support the reasonableness of D’s belief in C’s consent

Question 17

S.76 SOA 2003; Conclusive presumptions

Answer 17

• If D intentionally deceived V as to the nature, or purpose of the relevant act
• If D intentionally induced V to consent to the relevant act by impersonating a person known to V personally, then it is conclusively presumed that V did not consent

Question 18

S.76(2)(A)

Answer 18

Deception as to the nature or purpose of the act. The deception must be intentional and explicit.

Question 19

S.76 (2)(B)

Answer 19

Deception as to identity, impersonating spouse or long term partner (Elbekkay 1995) can also include impersonating colleagues friends

Question 20

Approaching issue of consent

Answer 20

Three step analysis;
Section 76; conclusive presumptions
Section 75: evidential presumptions
Section 74: general meaning

Question 21

S.74 General definiton of consent

Answer 21

‘Agreement’ is a state of mind - Bree (2007)
‘Freedom to make that choice’ - Olugboja [1982]
‘Capacity to make that choice’ - Bree (2007) (Intoxication)

Question 22

Grooming

Answer 22

Ali (2015) - grooming may limit V’s capacity to make a free decisions

Question 23

Deceptions that are not covered by S.76

Answer 23

• Assange [2011] - Deception that D would wear condom/ consent vitiated
• R(F) v DPP [2013] - Deception that d would nit ejaculate indide V
• McNally [2013] - Deception about D’s gender
• R(Monica) v DPP - Lack of partners knowledge
• Lawrance [2020] - Decption about vasectomy did not vitate consent
• Other; ‘common sense approach’

Question 24

Rape; Mens Rea as to consent

Answer 24

Old law; Intention or recklessness. Morgan (1976); d acts without mens rea is genuine belief in consent
SOA 2003: negligence - D must not just have reasonably believed V’s choice to agree but also in V’s capacity to consent

Question 25

Key cases

Answer 25

Court [1988] 2 All ER 211 (HL)
R v H [2005] EWCA 732

Question 26

Other legislation

Answer 26

Assault by penetration (s.2)
Sexual Assault (s.3)
Causing sexual activity without consent (s.4)
SOA 2003 s.2-4 in connection with S.75-79