Theory Flashcards
Consent - sexual offences - Deception - Greasley
- all deceptively-induced sexual activity is immoral but not all of it should be criminal - deception can be a “weapon of the weak” eg a woman telling her abusive husband she was working late instead of out with friends (a deception which, but for, he would not have sex with her)
Consent - sexual offences - Deception - Sharpe
categorising behaviour in McNally as “deception” raises questions about gender dysphoria and at what point a transgender person can be viewed as the gender they weren’t assigned at birth - concerned with human rights like privacy
Consent - sexual offences - Deception - Gross
mistaken sex isn’t very harmful - just a bit embarrassing for V - Herring - this is disrespectful
Consent - sexual offences - General consent - Madden Dempsey and Herring
views all penetration as a prima facie wrong which requires justification (eg consent) of the use of force (physical penetration), risk of harm, and the negative social meaning of sex (relative to the value of a woman)
Consent - sexual offences - General consent - Gardner
“no general reason not to have sexual intercourse, whereas there is a general reason not to occasion actual bodily harm” - orthodox view that sexual penetration isn’t wrongful in itself
Consent - sexual offences - General consent - Fletcher
all “intimate touching of the genitals… requires a good reason”
Consent - sexual offences - General consent - Prof.Gross
concern that the laws on sexual offences might impede upon sexual freedom - one of “natures blessings”
Consent - sexual offences - General consent - Herring
sex is “the stuff of abuse, oppression and a tool of war”
Consent - sexual offences - General consent - Appleton
sex positive feminism - criticises law for undervaluing women’s pleasure and reinforcing submissive stereotypes
Consent - sexual offences - General consent - Rubenfield
argued against sexual autonomy - “one person’s sexual self-determination will inevitably conflict with others” suggesting that refusal of sex can cause someone suffering - Herring in response - if B refuses to sleep with A they impose nothing on A, but if A forces B to sleep with them they interfere with A’s autonomy and body - “we should say that autonomy cannot be exercised in a way which unjustifiably harms another” and nothing wrong with refusing sex
Consent - sexual offences - General consent - Hornle
need to be careful about having to strict laws eg for those with learning disabilities who want to have sex - if there’s ambiguity, “the person who does not want sexual contact should resolve the ambiguity”
Consent - sexual offences - General consent - Mackinnon
views rape and sex as a spectrum, so rape is hard to define as its hard to distinguish it from intercourse
Consent - sexual offences - General consent - Gross
“not uncommon for women to express reluctance initially and then decide to have sex… and the question then arises whether words speak louder than actions”
Consent - sexual offences - General consent - Models of consent - Hornle
- communicational model - consent only if express (yes means yes) and unless objection is expressed
- attitudinal model - consent if they have the state of mind of consenting and unless they inwardly object
- mixed model - consent only if they express consent and inwardly want consent and unless they express objection and inwardly object
Consent - sexual offences - General consent - Williams
should the law protect people who make immoral decisions eg not wanting to have sex with someone due to ethnicity or religion - Herring - shouldn’t have to come up with a good reason to not have sex with someone
Consent - sexual offences - General consent - Weare
‘it is the extent and significance of the similarities between the experiences of many male forced-to-penetrate victims and many female rape victims that underpin my call for a consideration of compelled penetration to be legally recognised as rape’
Consent - sexual offences - General consent - Dripps
rape is characterised by violence and force
Consent - sexual offences - General consent - Choudry
need to reform laws on consent - have to determine the importance of sexual autonomy
Consent to harm (OAPA) - Deception and STD transmission - Ryan
distinction between active and passive deception - “wrong to assume that all instances of non-disclosure are the result of a cowardly, selfish or calculated decision” - criminalisation of non-disclosure often linked to autonomy principle - interferes with partner’s ability to make an informed autonomous choice about whether to risk infection - risk of transmission should be considered (can take precautions to lower it)
Consent to harm (OAPA) - Deception and STD transmission - Sharpe
rejects idea that active deception infringes autonomy more than non-disclosure because it wrongly assumes that the source of someone’s knowledge affects their autonomy, when all that really matters is what someone knows - Ryan says Sharpe overlooks the fact that active deception “fundamentally alters in a detrimental way their basis for knowledge and their effort to take responsibility for their own sexual health”
Consent to harm (OAPA) - Deception and STD transmission - Ryan
active deception “demonstrates greater culpability”
Consent to harm (OAPA) - general consent to assault - Tolmie
says the NZ approach is better, where consent is withdrawn as a defence based on the facts of the case rather than category of activity
Consent to harm (OAPA) - general consent to assault - social disutility approach
if consent is presumptively available court has to show the behaviour has such limited social utility it shouldn’t be permitted even if practiced with full consent
Consent to harm (OAPA) - general consent to assault - social utility approach
considering if the activity can be seen as an individual expression of a fundamental human right
Consent to harm (OAPA) - general consent to assault - Simester and Sullivan
some touching is only harmful if there’s no consent
Consent to harm (OAPA) - general consent to assault - Simester and Sullivan - 2 principles justify state intervention in matters of sexual preference
legal moralism (if conduct is sufficiently immoral or degrading it should be punished regardless) and paternalism (view that the law can protect people from themselves)
Consent to harm (OAPA) - general consent to assault - Choudry
importance of power imbalance in cases like Brown
Consent to harm (OAPA) - general consent to assault - Choudry
difficult to find boundary of where consent can be a defence in sport (eg in Billinghurst an off the ball punch which broke V’s jaw was gbh but in Barnes a serious leg injury after a tackle was not)
Consent to harm (OAPA) - general consent to assault - Clarkson and Keating
violence in playground or barrack room is expected as normal in the male world, but violent expressions of sexuality are less normalised - hence Brown had convictions but Aitken didn’t
Consent to harm (OAPA) - general consent to assault - Herring
best way is to distinguish between inflicting pain for the purpose of inflicting/enjoying pain, or inflicting pain for an ulterior motive (eg winning a boxing match) - if it would be viewed as a failure if pain wasn’t convicted, the law should criminalise it
Omissions - arguments against punishing omissions - ‘but for’
using ‘but for’ causations it can be argued that ‘but for’ omissions the same result would happen
Omissions - arguments against punishing omissions - J Dressler
criticises ‘bad samaritan laws’ - “it is much harder to determine why a person does not act”, “the risk of false positives”, ”if emotions and bad character attributions rule the day… innocent persons will be improperly convicted”, ”significant risk with BS laws that the decision to prosecute will be based on a prosecutor’s perceived need to respond to public outrage”
Omissions - arguments against punishing omissions - cost
prosecutions under Bad Samaritan laws are likely to be expensive (several bystanders, less clear laws, deciding who to prosecute, less likely conviction)
Omissions - arguments against punishing omissions - harm
risk that by trying to help, D may harm V more or harm themselves or others
Omissions - arguments against punishing omissions - autonomy
risk of restricting personal liability by requiring people to do something (principal of autonomy - John Stuart Mill - should be free to choose what we want, for any reason we want (or none), provided it does not harm other people)
Omissions - arguments against punishing omissions - distinction
line between an act and an omission is too fine a line to place any great weight on - eg is dropping something an act or an omission to hold it
Omissions - arguments in favour of punishing omissions - Hart and Honore
omissions liability can be supported by the distinction between normal and abnormal events - if someone’s under duty to act and fails to do so this will be regarded as ‘abnormal’ and hence a cause of the result - eg if multiple people walk past a drowning child inc their parents and fail to rescue them, their parents are the ones liable because their duty of care makes it ‘abnormal’ for them to act
Omissions - arguments for punishing omissions - Ashworth
based on the concept of social responsibility (Ashworth social responsibility view) - draws attention to the need for cooperation and mutual support
MR - general MR - Kadish
existence of MR shows that criminal law sees people as autonomous agents responsible for their choices
MR - general MR - Chan and Simester
requirement of MR helps restrict the ambit of criminal law so it doesn’t cover too many people, helping protect freedoms and fight over-criminalisation
MR - general MR - Baroness Wootton
proposed a legal system without MR - suggested offences should just require harm to V and D’s state of mind should be considered during sentencing - this could make blameless people unfairly convicted of crimes but it emphasises the harm V suffers
MR - choice theory
people are responsible for things they choose to do so people should only be guilty of a crime if they choose to do the AR
MR - capacity theory
accepts people are responsible for their actions but also that it’s proper to punish those who have effectively chosen to act lawfully but didn’t
MR - character theory
D’s responsible for their character - if their criminal actions reveal character traits that are opposed by criminal law they should be punished
MR theory - Gardner
rejects MR approaches which focus on grand overarching theories - “the question of what should be the mens rea for a particular crime is a question which calls, in the first instance, for a local answer specific to that crime. For it depends… on what exactly is wrong, or is supposed to be wrong, with perpetrating that particular crime”
MR - intention - Weigend
“several explanations have been given for the claim that more severe consequences should be imposed on an intentional offender: he has taken a conscious decision to violate the interest protected by the law; his conduct is indicative of an attitude that consciously ignores the commands of the law; his knowledge of all relevant facts makes it easier for him to avoid the criminal conduct; and intentional violations of the law do more harm to the public feeling of security and therefore require harsher sanctions in order to restore the confidence of the public in the rule of law”
MR - intention - Norrie
2 approaches to intention - the formal psychological (’orthodox subjectivist’) approach (to intend something is to mean or aim to do it and our purpose is what we aim to bring about), and the morally substantive approach (splits the judgement into 2 components - the harm that constitutes the wrong and the fault of the wrongdoer - the moral quality in the act is more important than a precise distinguishing of different psychological states”)
MR - intention - Moore
intention should show that an actor sought to control a result and it has played a key role in his moral assessment of the act
MR - intention - Kaveny
intention should mean purpose
MR - intention - Shaw
intention is to be defined as something that if not materialised as originally conceived, the act would be considered a favour
MR - recklessness - Tadros
recklessness is an insufficient regard for the interests of others - people can be responsible for the way they form their belief that their actions are or aren’t risky - should hold D accountable if beliefs were formed when he wasn’t “adequately motivated” by the interests of others - “the agent will be reckless if the following conditions are fulfilled: (a) the action was of a kind that might carry risks with it according to the beliefs of the individual; and either: (b) given those beliefs the agent failed to fulfil his duty of investigating the risks; or (c) the agent wilfully blinded himself to the existence of the risk”
MR - recklessness - Duff
practical indifference - did D’s conduct (inc conscious risk-taking, failure to notice obvious risk created by their action, unreasonable belief on which she acted) display a “seriously culpable practical indifference to the interests which her action threatened?”
MR - recklessness - Alexander and Kessler Ferzan
people have different motivations for indifference to risk so courts need to be flexible and consider if the indifference is justified
