Tutorial 6 - Sexual offences Flashcards
1
Q
R v Jheeta [2007] EWCA Crim 1699
A
- D and V had been in a sexual relationship which had cooled - D then sent her several messages purporting to be from the police (and anonymous threats)- in some of these messages he told V that she should keep having sexual relationships with D otherwise she might be fined for causing him distress - she then had sex with him on about 50 occasions, only due to ‘police advice’
- D recognised that she only had sex with him due to his deceptions
- D was charged with rape
- conviction held - although the conclusive presumption in S76 Sexual Offences Act 2003 did not apply, V did not consent within the meaning of S74 of the Act (did not agree by a free choice that she had the capacity to make)
- Judge LJ - conclusive presumptions under s76 ‘require the most stringent scrutiny’ - in this case V was not deceived about the ‘nature or purpose’ of the act, however she had not consented under s74 and D was aware of this, so it was still rape
2
Q
R v Devonald [2008] EWCA 527
A
- departed from R v Jheeta - gave a wider meaning to deception for purpose under s76 - later rejected by R v Bingham
- D thought his daughter’s 16yo ex (V) had mistreated so posed on the internet as a 20yo woman and persuaded V to masturbate on a webcam so as to release the footage on the internet
- charged with causing a person to engage in sexual activity without consent against s4 SOA 2003
- appeal dismissed and conviction held - it did not fall under s76 because V was deceived as to the purpose of the act
- Leveson LJ - V was aware of the nature of the act, but was deceived as to the purpose, which was revenge rather than sexual gratification
- even though it concerns a different offence, the law on consent is based on the same principles that apply to rape
3
Q
R v Bingham [2013] EWCA Crim 823
A
- reinforced the principle from Jheeta - there should be a strict interpretation of s76, and deception as to peripheral matters, like identity and consequence of non-compliance, must be distinguished from deception as to purpose
- D pretended to be other men online and threatened his girlfriend that he would publish topless photographs of her online if she did not perform sexual acts on webcam
- charged with causing another person to engage in sexual activity without consent
- appeal allowed - the conclusive presumption under s76 did not apply
- Hadlett LJ - definition of purpose in s76 must be strictly construed as it effectively removes the only line of defence - ‘If there is any conflict between the decisions inJheetaandDevonald, we would unhesitatingly follow Jheeta’ - V was aware that D’s purpose was sexual gratification, and she was only deceived as to who was asking her for the acts (a peripheral matter) - however there’s a strong case that she did not consent under s74 if prosecution can prove that V only consented as she was blackmailed (not a free choice then)
4
Q
Assange v Swedish Prison Authority [2011] EWHC 2849
A
- ruled that if the woman agreed to have sex if the man wore a condom but he penetrated her without one, it would not fall under s76 - could still be rape under s74
- if a woman agrees to sex only if the man wears a condom and then the man deliberately penetrates her without a condom, an act was done to which she did not consent - woman didn’t explicitly state this but he was aware of the condition, generating mens rea
5
Q
R v Cicarelli [2011] EWCA Crim 2665
A
- it was emphasised that D, to rebut the presumption of mens rea, had to introduce evidence that he reasonably believed V consented - not enough to just say he did believe it
- evidence of reasonable belief in consent must be realistic before the issue is left to the jury to decide
- D and his girlfriend brought V back to their apartment after a party and D then sexually assaulted V while she was asleep
- D suggested that he did it in the belief V would consent based on an advance she made on him at the party
- judge held that the evidential presumption in s75 applied and D’s evidence was insufficient as to raise an issue as to whether he reasonably believed V consented
- appeal dismissed - evidence did not raise any issue for the jury to consider
- Lord Judge CJ - ‘before the question of the appellant’s reasonable belief in the complainant’s consent could be left to the jury, some evidencebeyond the fanciful or speculativehad to be adduced to support the reasonableness of his belief’ - D and V were effectively strangers and D’s evidence was based on a single advance so the evidence was incapable of supporting reasonable belief in V’s consent
6
Q
R v Bree [2007] EWCA Crim 256
A
- intoxication does not automatically vitiate consent, but whether it does is a question of V’s state of mind
- D went to visit his brother at uni and together they walked home V (very drunk) one of the brother’s friends - V remembered nothing after getting home, being sick and getting cleared up - regained consciousness with D engaging in sexual activity (inc penetration)
- V recognised she did not say no but said she never consented - D recognised she was drunk but claimed she had consented and undressed herself
- D convicted of rape - appealed on grounds that the judge had not said that drunk people can still consent
- appeal allowed - the judge had made insufficient direction of the fact that she would still be able to consent even when intoxicated
- Sir Ivor Judge P - under s. 74 Sexual Offences Act 2003, if V was intoxicated to the extent that she was unable to engage in sexual intercourse, she has not consented - consent depends on V’s state of mind
7
Q
R v Olugboja [1982] QB 320 (pre SOA 2003)
A
- lack of physical resistance (submission) does not amount to consent
- D’s friend raped V and was in the process of raping V’s friend when D told V to remove her trousers and had intercourse with her
- D admitted they had intercourse and was charged with rape
- judge directed that even though there was no physical struggle and no direct threat had been made, it was open to the jury to decide that she had submitted rather than consented
- D convicted of rape and appealed
- appeal dismissed - there was no consent
- Dunn LJ - loss of consent is not limited to situations involving fear, force or fraud - ‘every consent involves a submission, but it by no means follows that a mere submission involves consent’ - jury should focus on V’s state of mind and whether they made a free choice
- jury should consider the effect of the threat rather than the nature
8
Q
R v Kirk [2008] EWCA Crim 434
A
- an offer for a benefit in exchange for sex to vulnerable and desperate persons can be submitted to without consent
- D offered a homeless 14 year old girl £3.25 to have sex with her - she agreed and used the money to buy food
- D was convicted of rape and appealed - judge directed that there should be a distinction between consent and ‘willing submission’ and asked ‘So what was in her mind? Did she agree to have sex, or did she just submit to get £3.25?
- appeal dismissed - judge’s direction was correct
- Pill LJ - submission can be ‘willing’ in the sense that there was no physical resistance, leaving open the possibility that V submitted and did not consent - but the expression ‘willing submission’ should not be used because it can be easily confused with consent
9
Q
R v Ali[2015] EWCA Crim 1279
A
- ‘where there is evidence of exploitation of a young and immature person who may not understand the full significance of what he or she is doing, that is a factor the jury can take into account in deciding whether or not there was consent’
- Ds were charged with rape after grooming young girls from vulnerable backgrounds for sexual purposes
- prosecution argued that because they had been groomed the girls became sexually compliant and therefore their consent was not genuine
- appeal dismissed - Ds were correctly convicted
- Fulford LJ - ‘grooming has the tendency to limit or subvert the free will of the victim by creating an environment of dependency’ - although grooming doesn’t necessarily vitiate consent it raises the possibility that V was led to acquiesce rather than consent
10
Q
R (on the application of F) v DPP and A [2013] EWHC 945 (Admin)
A
- a woman sought judicial review of the decision of the DPP not to prosecute her former partner for rape or sexual assault - he agreed not to ejaculate inside her during intercourse, but he still did
- CPS and DPP refused to prosecute on the basis that even if the jury accepted her evidence it would not constitute a crime
- on appeal they ordered a review
- even though she consented freely to penetration, the penetration was a continuing act and he decided not to withdraw, negating her consent
- Lord Chief Justice - ‘she was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based’ - ‘this combination of circumstances falls within the statutory definition of rape’
11
Q
R v McNally [2013] EWCA Crim 1051
A
- deception as to D’s gender can vitiate consent under s74
- D (13) and V (12) were in an online relationship and V believed D to be a boy (wore mens clothing, called herself Scott - had a history of confusion around her gender identity - did not explicitly say that she was male) - when they met in person D penetrated V with a dildo several times
- V claimed she would not have consented if she knew D was a girl
- D convicted of assault by penetration under s2 SOA 2003 - appeal dismissed and conviction upheld
- Leveson LJ - D’s deception deprived V of V’s “freedom to choose” because “[V] chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the appellant’s deception” - not all deceptions will vitiate consent (eg deceptions about wealth) - the deception is relevant here because it affects the sexual nature of the act
12
Q
R (on the application of Monica) v Director of Public Prosecutions [2018] EWHC 3508 (Admin)
A
- Monica met Boyling (B) when she was an environmental activist and he was an undercover police officer who had infiltrated the Reclaim the Streets movement - they began a sexual relationship and she was unaware B was undercover
- after the relationship ended she became aware of his true identity and asked CPS to consider a rape prosecution - when they said no she shought a judicial review
- events occured before the SOA 2003 so was considered under the SOA 1956 but courts still considered how it would be decided under 2003 act
- application dismissed - it did not affect her freedom to choose whether to consent - in Mcnally there was ‘all the difference in the world between sexual activity with a girl and with a boy’ but the difference in this case was not so stark - would be unfair to convict him of rape - similar to convicting men who cheat on their wives with partners who are unaware they’re married of rape
13
Q
R v Lawrance [2020] EWCA Crim 971
A
- D met V on a dating website - he told her twice that he had had a vasectomy so there was no risk of pregnancy, so she agreed to have unprotected sex with him
- he lied (texted her admitting it the next day) and she became pregnant and had an abortion
- he was convicted of rape and appealed on the basis that V’s consent could not be vitiated by his deception
- appeal allowed
- Lord Burnett of Maldon CJ - in terms of s74 ‘the complainant was not deprived by the appellant’s lie of the freedom to choose whether to have the sexual intercourse or not’ - unlike Assange, V consented to the ejacualtion - she was deceived as to the nature of the ejaculation and the consequences of the act (broad circumstances) and not the nature or purpose of the act
- CofA rejected the ‘but for’ test for causation
- Richard Buxton called this decision “frankly shocking”
- Herring - unclear how the deception does not relate to the sexual act - seems that the law is now in a position to judge what is key to the performance of sex
14
Q
R v B [2013] EWCA Crim 3
A
- test for reasonable belief in consent under the Sexual Offences Act isobjectiveandmental illness of the defendant should not be taken into account
- D was a paranoid schizophrenic and believed he had ‘sexual healing powers’ - persisted in having sex with V after she objected - convicted of rape
- judge directed the jury to ignore D’s mental illness in determining whether he had reasonable belief in his partner’s consent for the purposes of s1(1) SOA 2003 - appealed on grounds that this was a misdirection
- appeal dismissed
- Hughes LJ - medical evidence showed that D’s condition did not affect his ability to understand consent, even if it did, such a delusional belief cannot in law render reasonable a belief that his partner was consenting when in fact she was not - unless it amounts to insanity, mental illness still means that D is judged based on the objective 3rd party’s view of reasonable - might be cases where the defendant’s personality or abilities are relevant, such as if they impede his ability to recognise social cues
15
Q
AG Ref (1 of 2020) [2020] EWCA Crim 1665
A
- D sat down next to V on the train and kissed on the mouth, claiming it was to cheer her up and support her after hearing others make derogatory remarks - charged with sexual assault
- trial judge ruled that the prosecution had to prove that D intended his kissing to be sexual and he was acquitted - AG referred the case to the CofA
- Fulford LJ - ‘it is not necessary for the prosecution to prove, as an element of the offence of sexual assault, that the offender not only intentionally touched another person without their consent and without reasonable belief in their consent, and that the touching was sexual, but also that the offender additionally intended his touching of that person to be sexual’ - instead, D’s purpose is relevant if a reasonable person would consider that, given the nature of the activity, it may be sexual and, because of the accused’s purpose, it was sexual
16
Q
R v H [2005] EWCA Crim 732
A
- clarified that the meaning of ‘sexual’ for the purposes of s78 SOA 2003 is subject to a two-step test
- D asked V if she ‘fancied a shag’ and grabbed her trousers to pull her close - V got away
- D charged with sexual assault - appealed on the basis that touching someone’s trousers isn’t sexual in nature under s78 and doesn’t account to ‘touching’ under s3
- appeal dismissed - the judge erred in his direction by not adopting a two-stage approach in his direction but the conviction is safe
- Lord Woolf CJ - when a person is wearing clothing, touching that clothing constitutes touching under s3 - jury should have to consider whether nature was sexual under two-stage test required by s78(b) SOA 2003:
1. Was the touching sexual by its nature?
2. Was the touching in fact sexual based on its purpose or the circumstances? - doesn’t have to meet the first one to be a sexual assault
