SP - Sexual Offences Flashcards
Key stats
- 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)
Stats Prosecuting Rape
- 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
S.1 of the SOA 2003; Rape
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
Interpretation of S.79(2)(3)(9)
- S.79(2): penetration is a continuing act from entry to withdrawal
- S.79(3) References to a part of the body include references to a part surgically construction (Gender reassignment surgery)
- S.79 (9): Vagina includes vulva
Is rape a gendered crime?
“…with his penis” - only man can commit a rape
Non-penile penetration
Sovered by s.2 S)A 2003; Assault by penetration
Meaning of consent
- S.74 Sexual Offences Act 2003 “A person consents if he agrees by choice, and has the freedom and capacity to make that choice”
S.75 Evidential presumptions
These presume that V did not consent (unless evidence is adduced t raise an issue as to whether V consented)
Violence Against V
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
Violence against another
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
S.75 (2)(C): Unlawful detention
V was and D was not unlawfully detainted at the time of the relevant act
S.75(2)(D)
V is asleep or unconscious
75(2)(E)
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
S.75(2)(F)
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
How to rebut S.75 presumptions?
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
Ciccarelli [2001] EWCA Crim 2665
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
S.76 SOA 2003; Conclusive presumptions
- 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
S.76(2)(A)
Deception as to the nature or purpose of the act. The deception must be intentional and explicit.
S.76 (2)(B)
Deception as to identity, impersonating spouse or long term partner (Elbekkay 1995) can also include impersonating colleagues friends
Approaching issue of consent
Three step analysis;
Section 76; conclusive presumptions
Section 75: evidential presumptions
Section 74: general meaning
S.74 General definiton of consent
‘Agreement’ is a state of mind - Bree (2007)
‘Freedom to make that choice’ - Olugboja [1982]
‘Capacity to make that choice’ - Bree (2007) (Intoxication)
Grooming
Ali (2015) - grooming may limit V’s capacity to make a free decisions
Deceptions that are not covered by S.76
- 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’
Rape; Mens Rea as to consent
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
Key cases
Court [1988] 2 All ER 211 (HL)
R v H [2005] EWCA 732
Other legislation
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
