sexual offences

Question 1

marital rape

Answer 1

r v r

Question 2

where are all sexual offences reported?

Answer 2

sexual offences act 2003, promotes protection non-discrimination and justice to the victims

Question 3

consent in SOA 2003

Answer 3

sets out consent as sexual, reasonable belief, rape being penile penetration without consent, sexual assault being sexual touching without consent

Question 4

what factors are considered in determining consent?

Answer 4

r v Mcfall

Question 5

structure of consent in SOA 2003

Answer 5

s 74 general definition of consent, s 75 situations where there is an evidential presumption against consent (D can bring evidence V consented, question of fact for jury to answer), s 76 situations where there is a conclusive presumption against consent (question of law for the judge)

Question 6

s 76 (2)(a) - deception as to nature or purpose

Answer 6

the D intentionally deceived the complainant as to the nature or purpose of the relevant act

Question 7

s 76(2)(b) - deception as to identity

Answer 7

the D intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant

Question 8

nature and purpose

Answer 8

r v flattery (medical exam) and r v Williams (improve singing voice)

Question 9

nature i.e., basic mechanics

Answer 9

r v dica ( non-disclosure of HIV) and r v cuerrier

Question 10

purpose

Answer 10

r v linekar (non-payment of a sex worker) and r v devonald (solicited V to masturbate on webcam)

Question 11

identity s 76(2)(b)

Answer 11

has to be someone personally know to V, deception as to attributes isn’t enough
- r v elbekkay (pretended to be V’s boyfriend) and r v b (sexual infection is an attribute of D)

Question 12

presumptions under s 75

Answer 12

are evidential and can be rebutted with evidence

Question 13

what happens if facts/evidence are shown by prosecution that raises presumption?

Answer 13

D has the burden of bringing evidence to rebut, D’s belief in consent insufficient to rebut presumption alone (r v cicerelli), need to show the context doesn’t undermine consent not that it doesn’t exist

Question 14

If presumption is rebutted

Answer 14

prosecution need to show lack of consent under s 74

Question 15

the presumptions s 75(2)

Answer 15

use of threat of violence against V, use or threat of violence against another, V unlawfully detained D not, V asleep or otherwise unconscious, V has physical disability that prevents communication, involuntary administration of drugs that stupefy or overpower V

Question 16

violence presumptions s 75(2) - use or threat of violence against V

Answer 16

D must be aware of violence, immediate violence

Question 17

violence presumptions s 75(2) use or threat of violence against another

Answer 17

V fears violence was being used or would immediately be used against another, covers situations if e.g., D threatens V child to gain consent, very broadly drafted

Question 18

definition of consent - s 74

Answer 18

consent exists if V agrees by choice and has freedom and capacity to make that choice
- r v Watson
- no need to show struggle or resistance for lack of consent
- freedom - coercion and deception
- capacity - mental

Question 19

consent - freedom

Answer 19

• r v jheeta = coercion, submission and intimidation
• deception is not treated consistently, deception as to physical sexual acts will undermine consent (Assange case (condom use), r (f) v DPP (internal ejaculation), r v mcnally (gender)), deception as to context will not undermine consent (Mcnally (not disclosed HIV status) and r v lawerence (set out sex/context distinction)), external life pressures generally not undermine consent (exceptions possible - r v Kirk (sex in exchange for money to buy food))

Question 20

consent - capacity

Answer 20

v’s capacity, specific to V and the choice that was made
- r v bree (V heavily intoxicated)
- r v c (had a mental disability)

Question 21

2 part test from R v C for a persons capacity relating to their consent

Answer 21

they must be able to understand the information relevant to making it and to be able to weigh that info in the balance and arrive at a choice

Question 22

definition of sexual - s 78

Answer 22

OBJECTIVE TEST - REASONABLENESS TEST
- something is sexual if a reasonable person would consider that whatever circumstances or any person’s purpose in relation to it, it is BECAUSE OF ITS NATURE sexual, or because of its nature it MAY be sexual and BECAUSE OF ITS CIRCUMSTANCES OR THE PURPOSES OF ANY PERSON IN RELATION TO IT (or both) it is sexual

Question 23

2 part definition to sexual - s 78

Answer 23

its nature or its circumstances and/or purpose

Question 24

r v George = principles behind s 78 test for “sexual acts”

Answer 24

removed shoes of girl for own pleasure, was not held to be sexual, acquitted for claims of sexual harm, D purpose in acting was sexual, conduct might be

Question 25

r v court - principles behind s 78 test for “sexual acts”

Answer 25

D put 12 year old over knee and slapped her bum, said had a fetish, charged with sexual assault, conviction upheld

Question 26

second part of the test for act being “sexual” s 78

Answer 26

if something may be sexual jury looks at circumstances/purpose

Question 27

second part of the test for act being “sexual” s 78 - R v h

Answer 27

successful application, accosted V as she walked across field, asked if she wanted to shag and pulled her trousers down to try, convicted of sa, sexual act and D purpose proven

Question 28

SOA 2003 - s1 Rape

Answer 28

D commits an offence if he intentionally penetrates the vagina, anus or mouth of V with his penis, D doesn’t consent to penetration, D doesn’t reasonably believe V consents
- reasonable belief to be determined by looking at all the circumstances
- a person guilty is liable to imprisonment for life, must be on indictment and in front of jury

Question 29

SOA 2003 - s2 assault by penetration

Answer 29

if D intentionally penetrates vagina or anus of V with a part of his body or anything else, penetration is sexual, V doesn’t consent, D doesn’t reasonably believe V consents
- reasonable belief to all circumstances
- a person is guilty they are liable to imprisonment for life, conduct crime no result required

Question 30

AR penetration - s.1 and s.2

Answer 30

mouth is excluded from s.2, doesn’t exclude penis can act as a fallback to rape if V unsure they were, increased risk of disease spreading and pregnancy

Question 31

penetration - s 79 SOA 2003

Answer 31

from when the penis enters the body to when it is taken out, continuing act from entry to withdrawal, need only be slight, cannot use consent for 2 things by giving it once, part of body includes surgically manufactured

Question 32

AR: Penetration is sexual s2

Answer 32

only applies to assault by penetration, whether the penile penetration is sexual is not part of the definition of rape
- r v hill - D and V lived together, argument where D pulled V’s trousers down, inserted fingers, assault by penetration, s 78 test is objective whether reasonable person

Question 33

AR: V doesn’t consent

Answer 33

SOA 2003 gives first legal definition of consent

Question 34

MR: lack of reasonable belief

Answer 34

DPP v Morgan - D encouraged men to have intercourse with wife, her resisting would’ve been enjoying and consenting, all charged with rape, stated they had her consent, V husband not convicted.

Question 35

why is subjective MR a problem

Answer 35

conduct usually without witnesses, significance of the harm and violation involved, usually easy to establish consent

Question 36

MR: reasonable belief - lacking in it

Answer 36

• D lacks reasonable belief if intends to lack V to lack, V lacks. consent, reckless as to V’s constant, doesn’t consider consent at all

Question 37

MR: reasonable belief - all circumstances taken into account

Answer 37

• various things to be considered, D’s age sexual experience mental capacity, V’s dress and conduct, steps taken by D.

Question 38

evidential presumption

Answer 38

will apply unless they bring rebuttal evidence to the trial

Question 39

conclusive presumption

Answer 39

consent does not exist due to fraud, D is therefore presumed to hold the required MR of lack of belief

Question 40

sexual assault - s.3 of SOA 2003

Answer 40

an offence if he intentionally touches another person, the touching is sexual, V doesn’t consent to the touching, D doesn’t reasonably believe V consents

Question 41

sexual assault - s.3 of SOA 2003 sentencing

Answer 41

if a person is guilty/liable they are to be imprisoned not exceeding 10 years

Question 42

what kind of crime is sexual assault?

Answer 42

a result crime, doesn’t criminalise specific conduct, no set way they touch the V

Question 43

AR (SEXUAL ASSAULT): Touching (s 79)

Answer 43

any part of the body, with anything, through anything, V need not be aware of it

Question 44

r v h - sexual assault

Answer 44

D grabbed V’s clothing, didn’t touch anywhere else, touched her through something, no need for skin-to-skin contact, merely touching clothes is touching

Question 45

AR (SEXUAL ASSAULT): V doesn’t consent

Answer 45

consent defined in ss74-76

Question 46

AR (SEXUAL ASSAULT): Touching is sexual

Answer 46

s 78, by its nature sexual or it might be sexual