WS 3 Sexual Offences

Question 1

R v R [1991]

Answer 1

R v R [1991] – held that a husband could rape his wife.

Question 2

s.142 Public Order Act 1994

Answer 2

amended the offence of rape to include men as well as women as victims

Question 3

AR of s.1 SOA 2003 (Rape) (life)

Answer 3

1) Penetration of the vagina, anus or mouth
2) Of another person
3) With penis
4) V does NOT CONSENT (see box below)

Question 4

s.79(3) SOA 2003

Answer 4

Rape offence covers transsexuals also

Question 5

s.79(2) SOA 2003

Answer 5

Penetration is a continuing act. Therefore any withdrawal of consent by the victim during penetration suffices to committ the actus reus of rape.

Question 6

R v Kaitamaki [1985]

Answer 6

consent can be withdrawn at any point during penetration. Any continuation by D will amount to the AR of rape (as penetration is a continuing act – s.79(2))

Question 7

Definition of consent?

Answer 7

Definition of consent (s.74): agreeing by choice, having the freedom and capacity to make that choice.

Question 8

R v Kirk rule and the facts

Answer 8

situations of desperation/coercion may remove your capacity to consent. Submission is not consent. C was a young girl who had been sexually abused by the D and others. When homeless, hungry and desperate she had sex with the D in return for some money for food. The D was convicted of rape on the basis that C had submitted rather than consented

Question 9

R v Bree [2007] Court of Appeal

Answer 9

drunken (voluntary intoxication) consent may be valid, but – depends on whether V still capable of choosing (capacity may evaporate before unconsciousness)

Question 10

R v Dougal [2005]

Answer 10

Swansea Crown Court: V said she “couldn’t remember consenting”. This was fatal to prosecution – they must prove lack of consent.

Question 11

MR of s.1 SOA 2003 Rape

Answer 11

1) Intentional penetration by D
2) Lack of reasonable belief in CONSENT (under s.1(2) whether belief is reasonable is determined with regard to all the circumstances including steps taken to ascertain whether the V consented)

Question 12

AR of s.2 Assault by Penetration (life)

Answer 12

1) Penetration of vagina or anus of another person
2) With a part of D’s body or an object
3) V does NOT CONSENT (see box below)
4) Penetration is ‘SEXUAL’

Question 13

MR of s.2 Assault by Penetration (life)

Answer 13

1) Intentional penetration

2) Lack of reasonable belief in consent

Question 14

AR of s.3 sexual assault (10 years)

Answer 14

1) D touches V
2) Touching is ‘SEXUAL’ (see above for meaning)
3) V does not consent to the touching

R v H: touching of clothing may be sexual

Question 15

R v H [2005] CA

Answer 15

o Facts: Court of Appeal. V approached by a man who asked, do you fancy a shag? The V walked away but was subsequently approached by the same man who asked if she was shy. Man tried to pull V towards him by grabbing at a pocket that was located at the side seam of trousers. CA held that touching of an individual’s clothing was sufficient to amount to touching under s.3. CA also confirmed that where it was not clear whether touching was by its nature ‘sexual’ or not, it was appropriate to ask the jury to consider 2 questions:
o Could it reasonably be considered as sexual?
o Could it reasonably in all the circumstances of the case be considered that the purpose of the touching had in fact been sexual?

Question 16

MR of s.3 Sexual Assault (10 years)

Answer 16

1) D INTENTIONALLY touches V

2) Absence of reasonable belief in CONSENT

Question 17

Definition of sexual?

Answer 17

• Objective test for the jury
• S.78 definition: any activities which:
o By their nature are sexual; or,
o By their nature MAY be sexual, and due to the circumstances, IS sexual

R v H:

o Could it reasonably be considered as sexual?
o Could it reasonably in all the circumstances of the case be considered that the purpose of the touching had in fact been sexual?

Question 18

When is there an irrebuttable presumption of lack of consent?

Answer 18

a) D intentionally deceives V as to the nature/purpose of the act (narrowly interpreted – R v Jheeta; R v Devonald)
b) D intentionally induces consent by impersonating a person known personally to V

Question 19

R v Jheeta (Harvinder Singh)

Answer 19

D deceived C into believing she would be fined by the police if she did not have sex with him. Court of Appeal interpreted s.76(2)(a) narrowly saying although there had been deception, this was not deception as to the nature/purpose of act. However, he was still charged as C had not consented.

Question 20

R v Devonald

Answer 20

R v Devonald: CA held that the jury was entitled to find the D had deceived the C as to the ‘purpose’ (if not the ‘nature’) of the act. The D wanted to take revenge on the C for jilting his daughter. Posed over internet as a woman and persuaded the C to masturbate on a webcam for the sexual gratification of the pretend girl. Charged with causing a person to engage in sexual activity without consent under s.4 SOA 2003. Court took broader view of s.76(2)(a) – thought was for sexual gratification of cassey not others, therefore deceived as to purpose.

Question 21

s.75(1) rebuttable presumption of lack of consent

Answer 21

s. 75(1): REBUTTABLE presumption of lack of consent where:
a) D did the relevant act;
b) Any of the following 6 circumstances existed; and,
c) D knew the circumstance existed

Question 22

s.75(2) six scenarios

Answer 22

a. Violence or threat of thereof against V; or
b. Causing V to fear violence or threat thereof
c. V was, and D wasn’t unlawfully detained
d. V was asleep/unconscious
e. V cannot communicate to D due to physical disability
f. V is intoxicated by D without V’s consent

Question 23

How does D rebut a s.75 presumption?

Answer 23

By producing evidence to the contrary.

Question 24

What if woman alleges she was intoxicated at the time of the act because of a drug the D provided for her?

Answer 24

s.75(2)(f) presumption. Whether or not the presumption applies will depend on whether the D administered or caused his victim to take the drug without her consent. Presumption is rebuttable by evidence, but we require further information as to:

a) Whether D did supply or administer the drug;
b) If D did, whether such was without the consent of V
c) Whether drug capable of stupifying at time of alleged offence

Question 25

AR of s.9

Answer 25

1) D touches V who is under 16
2) Touching = sexual

s.9 Can only be committed by someone 18 years or over

Question 26

MR of s.9

Answer 26

1) D intentionally touches V
2) V is under 16 and D doesn’t reasonably believe that C is 16 or over; or
3) C is under 13 (strict liability if so)

s.9 can only be committed by someone 18 years or over

Question 27

s.9(2) SOA 2003

Answer 27

Offence of sexual activity with a child under s.9(1) is indictable only and the max penalty is 14 years if penetrates mouth with penis or vagina or anus with part of body. Otherwise, the offence is either-way.

Question 28

AR of s.13 SOA 2003 (5 years)

Answer 28

1) D touches V who is under 16
2) Touching = sexual

s.13 can only be committed by someone who is under 18 years

Question 29

MR of s.13 SOA 2003 (5 years)

Answer 29

1) D intentionally touches V
2) V is under 16 and D doesn’t reasonably believe that C is 16 or over; or
3) C is under 13 (strict liability if so)

s.13 can only be committed by someone who is under 18 years

Question 30

If the victim is under 13?

Answer 30

ss. 5, 6, 7 of SOA 2003 replicate offences under ss.1-3 where the victim is a child under 13. However, under ss.5,6,7, neither the consent of the V nor the D’s belief in consent is a relevant issue. Strict liability as to age of child.