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N.I.E. v2 > Week 5 - Sexual Offences > Flashcards

Week 5 - Sexual Offences Flashcards

1
Q

Sexual offences act 2003

S1
S2
S3
S4

A

S1 - rape

S2 - assault by penetration

S3 - sexual assault by touching

S4 - causing a person to engage in sexual activity without consent

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2
Q

Sexual offences act 2003

S74
S75
S76

A

S74 - consent (a person consents if he agrees by choice, and has the freedom and capacity to make that choice)

s75 - evidential presumptions about consent

S76 - conclusive presumptions about consent

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3
Q

Rape ….

Intentionally penetrates what?

A

Vagina, anus or mouth of another person

Vagina includes vulva

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4
Q

Rape of child under 13

What section?

Have to prove what?

A

S5 sexual offences act 2003

Have to prove:

  • Age of victim
  • Intentional penetration
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5
Q

What is meant by consent?

A

S74 - consent

A person consents if he agrees by choice, and has the freedom and capacity to make that choice

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6
Q

S75 sexual offences act

Evidential presumptions about consent

A

If for an offence to which this section applies it is proved:

a) that the defendant did the relevant act
b) that any of the circs specified in s75 subsection 2 existed and
c) the defendant knew those circs existed

Then the complainant is taken not to have consented

Subsection 2:-

A) any person was at the time of the relevant act (or immediately before it began) using violence against the complainant

B) any person was at the time or immediately before, causing the complainant to fear that violence was being used, or immediate violence would be used against another person

C) the complainant was (and the defendant was not) unlawfully detained at the time of the relevant act

D) the complainant was asleep or otherwise unconscious at the time of the relevant act

E) because of the complainants physical disability they would not have been able at the time of the relevant act to communicate whether they consented

F) any person has administered to, or caused to be taken by, the complainant, without the complainants consent, a substance which (having regard to when it was administered or taken) was capable of causing or enabling the complainant to be stupified or overpowered at the time of the relevant act

(This list is not an exhaustive list of deciding when consent is absent, there may be other circumstances where consent does not exist..
Ie PC Stephen mitchell was guilty of rape as he gained consent by threatening to take the victims children away)… ie. Consent gained by submission of the victim.
Just because thie circs.of consent in this case wasnt specified by s75 does not mean the victim consented! It just means a presumption cannot be made)

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7
Q

S76 sexual offences act 2003

Conclusive presumption about consent

A

If it is proved that the defendant did the relevant act and that any of the circs in subsection2 (below) exist it is to be conclusively presumed
A) that the complainant did not consent and
B) that the defendant did not beleive the complainant consented….

Sub (2); the circs are that:-
A) the defendant intentionally deceived the complainant as to the nature or purpose of the act

B) the defendant intentionally induced the complainant to consent by impersonating a person known personally by the complainant

Eg:
A) pretending that inserting a finger into a victims vagina is for medical reasons
B) impersonates the victims partner

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8
Q

S2 sexual offences act

Assault by penetration

A 
A person (A) commits an offence if
A) intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else
B) the penetration is sexual 
C) B does not consent to the penetration and 
D) A does not reasonably believe that B consents

Broad offence covering insertion into vagina or anus (NOT the mouth) of anything (i.e dildo or animal) …
Providing the penetration is sexual.

S75 and s76 apply (evidential and conclusive consent)

If child is under 13, just have to prove age and intentional sexual penetration. No issue of consent when under 13. And a Special offence of s6 is committed

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9
Q

Sexual assault of child under 13

Section?

Prove what?

A

S6. Sexual offences act 2003

Age of child and intentional penetration

No issue of consent as a child

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10
Q

Definition of term ‘sexual’

A

S78 defines sexual and provides that penetration, touching or any other activity will be sexual if a reasonable person would consider that:

A) it is sexual by its very nature (whatever its circs or a persons purpose)

B) because of its nature it may be sexual, and because of its circumstances or the purpose of any person in relation to it, it is sexual.

Therefore A) covers anything a reasonable person would always consider sexual (i.e masturbating) and B) covers things that may not be considered sexual depending on the circs or intentions of person carrying it out (i.e a doctor inserting his fingers into a patients vagina)

If the activity would noy appear to a reasonable person to be sexual, then it will not meet either of the above criteria and irrespective of the sexual gratification any perspn may derive from the activity it will not be sexual . (Therefore weird fetishes that noone would consider as being sexual are not covered)

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11
Q

S3 sexual offences act

A

Sexual assault by touching

A person (a) commits an offence if
A) he intentionally touches another person (b)
B) the touching is sexual 
C) B does not consent to the touching and
D) A does not reasonably believe thay B consents
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12
Q

S9 sexual offences act 2003

Sexual activity with a child

Can this offence be committed by a person under 18?

A

No

The defendant must be over 18

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13
Q

S 11 sexual offences act

Engaging in sexual activity in the presence of a child.

If a person engages in a sexual activity and intends a child to watch, or believes they are watching, do they commit the offence?

A

Not if the child isnt present or in a place from which they can observe.

That the defendant intends for them to watch or believes they are watching is immaterial if they are not present or in a place they can observe .

It is also not necessary to show in every case that the child was aware of the activity

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14
Q

S 11 sexual offences act

Engaging in sexual activity in the presence of a child.

How old must the defendant be to commit this offence?

How old must the victim be?

A

Defendant 18 or over

Victim under 16

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15
Q

S 11 sexual offences act

Engaging in sexual activity in the presence of a child.

What 2 things must be shown to commit the offence

A

That the activity was sexual

That the activity was carried out in order to obtain sexual gratification (gained by knowing the child is watching)

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16
Q

S 12 sexual offences act

Causing a child to watch a sexual act

Does a.person have to intend a child to be caused to watch for this offence to be committed?

A

Yes. It must be committed intentionally .

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17
Q

For the purposes of s3, what does touching include?

A

Includes Touching a persons clothing while they are wearing it

S79(8) defines touching as including including Touching:
any part of the body
with anything else
Through anything

The conduct must be intentional (rather than reckless or accidental)

18
Q

Sexual touching of a child under 13?

Section?

A

S7 sexual offences act

Simply have to prove intentional sexual touching and the childs age

No issue of consent arises due to childs age

19
Q

Rape.

If person A had their drink spiked by person B and then person C had sex with them, not knowing their drink was spiked… is person C guilty of rape??

A

No.

Because person C did not know that those circumstances existed (stupified and therefore evidential presumption issues under s75 sexual Offences act 2003)

20
Q

Could engaging someone in a conversation of a sexual nature (i.e talking dirty) consititute a sexual activity

A

Yes… activity is not defined and can include a conversation of a sexual nature

21
Q

S160 criminal justice act

If images sent to A without any prior request for such material, would the fact they have been kept by A for an unreasonable amount of time harm his defence for posession of indecent images??

A

Yes.

Defemce that he didnt request them. But keeping them for unreasonable time defeats this defence

22
Q

Sexual touching

Does the touching have to be touching of a body part

A

No.
Can be any part of body
Includes touching clothing (i.e says ‘fancy a shag’ and grabs pocket of persons trousers )

23
Q

S2 sexual assault by penetration…

Includes penetration of what?
By what?

A

Penetration of Anus or mouth

By any body part or anything else
Not penis… as this would be rape

24
Q

S9 sexual activity with a child

How old should the offender be to commit this offence?

How old should the child be?

A

Offender Over 18 years for an offence under s9

Child under 16

25
Q

S4 sexual offences act
Causing others to engage in sexual activity

If involves penetration.. maximum sentence?

A

Life

Particularly if penetration of;
vctims anus or vagina, or 
victims  mouth with a penis, or 
any other persons anus or vagina with part of victims body, or 
ersons mouth with victims penis
26
Q

S75 evidental presumption

Are the circumstances specified in subsection 2 rebuttable?

A

Yes…

The complainant is to be taken not to have consented to the relevant act if any of the circs in subs 2 exist.. unless sufficient evidence is adduced to raise the issue as to whether they consented

The presumption is therefore a rebuttable one

27
Q

S14 sexual offences act
Arranging or facilitating a child sex offence

Who does this offence cover in terms of who is going to commit the offence against the child?

A

Either the person arranging/facilitating (ie they will commit the offence themselves),
Or
any other person which the person arranging /facilitating believes will commit the offence

28
Q

S12 sex offences act

Causing a child to watch a sexual act

Must this be intentional

A

Yes.

Must be committed intentionally

Must also be to gain sexual gratification by watching the child watch the activity of a 3rd person or image

29
Q

S30 sexual offences act 2003

Sexual activity with a mentally disordered person

A

ACommits an offence if:
He intentionally touches another person (b)
The touching is sexual
B is unable to refuse because of, or for reason related to, a mental disorder and
A knows or could reasonably be expected to know that B has a mental disorder and therefore is unlikely to be unable to refuse

Sentencing:

If involves penetration of :
Victims vagina or anus,
Of victims mouth with defendants penis
Of defendants mouth with victims penis

Life imprisonment

Otherwise 14yrs on indictments

30
Q

Mentally disordered.

A person is Unable to refuse if…

A

He lacks capacity to choose wether to agree to the touching (either because of lack or sufficient understanding or the nature or reasonably foreseeable consequences of what it being done, or any other reason),
OR
He is unable to communicate such a choice to the defendant

31
Q

Sexually activity with mentally disordere person….

If the defendant obtains mentally disordered victims agreement to sexual touching by any means of inducement (offered or given), or a threat or deception for that purpose, then the defendant commits a specific offence… under what section?

A

S34

32
Q

S35 sexual offences act 2003?

A

If defendant uses inducement threat or deception to cause the victim to engage in or agree ti engafe in sexual activity .

Need to prove defendant knew, or could reasonably have been expected to know, if victims mental disorder

But NO NEED to prove the victim was unable to refuse

33
Q

S31 sexual offences act 2003

A

Causing or inciting a person with a mental disorder impeding choice to engage in sexual activity with another person (without threats inducements or deception)

This is an incomplete/unfinished offence therefore it is not necessary to prove that the sexual activity took place

34
Q

S32 sexual offences act

A

Sexual activity in presence of person with mental disorder

A commita an offence if
He intentionally engages in an activity
The activity is sexual
For the purpose of obtaining sexual gratification he engage in it… when B is present or is in a place feok which A can be observed, and knowing or believing B is aware, or intending B to be aware, that he is engaging in it
B is unable to refuse because of, or for a reason related to mental disorder and
A knows or could reasonably be expected to know that B had a mental disorder and because of it B is unlikely to be unable to refuse

Observation includes direct onversation or by looking at any image

Sentence:
10 years indictment
6mths summary

35
Q

S33

A

Causing a person with a mental disorder to watch a sexual act

For purpose of obtaining sexual gratification

Includes watching images (image incudes still/moving images and images of imaginary person)

10 yrs indictment
6mth summary

S37 same offence but if victim indeced threatened or deceived to watch
In this offence there is No need to prove victim was unable to refuse

36
Q

Prostitution

Definition of a prostitute (secual offences act)

A

A person who
On at least ONE occasion
and whether or not compelled to do so
Offers or provides sexual services to another person
In return for payment or a promise of payment to A or a third person

Applies to both men and women

37
Q

S52 sexual offences act

Causing, inciting or controlling prostitution

A

A person commits an offence if
He intentionally causes or incites another person to become a prostitute in any part of the world and
Does so for, or in the expectation of, gain for himself alor a third person

7 yrs indictment
6mths summary

38
Q

S53 sexual offences act

A

A person commits an offence if
He intentionally controls any of the activities of another person relating to that persons prostitution in any part of the world and
Does so for, or in the expectation of, gain for himself alor a third person

7 yrs indictment
6mths summary

39
Q

S53a sexual offences act

A

Paying for sexual services to a prostitute subjected to force.

A person (A) commits an offence if:

  • A makes or promises payment for sexual services of a prostitute (B)
  • a 3rd person (C) has engaged in exploitative conduct of a kind likely to induce or encourage B to provide the sexual services which A has made i promised payment for and
  • C has engaged in that conduct for or in the expectation of gain for C or another person (not A or B)

The following are irrelevant

a) where in the world the sexual services are to be provided and whether those services are provided
b) whether A is, or ought to be, aware that c has engaged in exploitative conduct

C engages in exploitative conduct if

a) C uses force, threats (whether relating to violence or not) or any form if coercion OR
b) C practices any form of deception

This offence is one of strict liability and no mental element (mens rea) is required in respect of the offenders knowledge that the prostitute was forced coerced or deceived.

40
Q

Brothels

S33a sexual offences act

Common law

S1 Street offences act 1959

S51a sexual offences act 2003

A

S33a sexual offences act - Keeping a brothel used for prostitution

Common law - Keeping a disorderly house

S1 Street offences act 1959 - Soliciting by persons:
(Person over 18 to persistently loiter or solicit in a street or public place for purposes of prostitution. Conduct is persistent if takes place on 2 or more occasions within a 3 mth period. Reference to person loitering/soliciting is for purpose of offering services as a prostitute )

S51a sexual offences act 2003 - Soliciting by kerb crawling:
(It is an offence for person in a street or public place to solicit another ‘B’ for purpose of obtaining Bs services as a prostitute. Includes a person in a vehicle in a street/ public place).

Kerb crawling or soliciting is punishable on the 1st occasion the activity takes place.

Re kerb crawling.. no requirement to show the soliciting is likely to cause a nuisance or annoyance to others.

N.I.E. v2 (20 decks)

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