Criminal - Sexual Offences

Question 1

Ss 1-4 sexual offences act 2003

What are these?

Answer 1

S1 rape
S2 assault by penetration
S3 sexual assault
S4 causing a person to engage in sexual activity without consent

Question 2

How many conduct and fault elements are there for rape?

Answer 2

2 of each.
Conduct: penetration (of vagina, anus or mouth - mouth =new addition) with penis (only men can commit rape) and lack of consent
Fault: intentional penetration and no reasonable belief in consent

Question 3

What are the ways in which it can be shown that V didn’t consent to the rape? Which order must you work through them in?

Answer 3

Start with s.76
Conclusive presumptions
Identity and nature/purpose of the act. 
S.75 evidential presumptions 
S.74 non-disclosure (agreement by choice and capacity to make that choice)

Question 4

Three cases for nature/purpose deception for the s.76 conclusive presumption of lack of consent?
Which case would you contrast these with?

Answer 4

Flattery and Williams (separate cases, same point)
choirmaster operation to make singing better

Tabassum - medical database breast fondling - sexual assault case.

Cf. Jheeta
Elaborate scheme, faking burglaries and texts from the police.
Was held not to s.76, but was instead s.74 (pressure may vitiate consent)
Shows the threshold for s.76 is very high

Question 5

Which two cases would you use for the identity deception point needed to use s.76?
Why was one of these decided wrongly?

Answer 5

Need to impersonate a person known to the claimant personally. The deception must induce consent.

Elbekkay
Drunk, pretended to be her bf.
David Ormerod: question: is it ‘known personally’ where someone has created a fictitious persona on social media? We await case laws on this point.

Devonald 2008
Father pretended to be a girl named Cassie, then posted the video of him masturbating across the Internet.
Was held to be a deception as to identity (76 (a)), but should really have been a s.76 presumption on the basis of nature/purpose (76 (b)) of the act.
Nb. Here was a s.4 offence.

Question 6

Who has criticised s.76? On what basis?

Answer 6

Karl Laird
Says s.76 is too prohibitive since it forces courts to go to s.74.
The conclusive presumptions have diminished to a vanishing point.

This criticism has been recognised by the courts to some extent, E.g. McNally 2013 - female posing as a male with a dildo. Lord Judge said have to take a broad, commonsense view. S.76 is about ACTIVE deception - so it applied here (to a s.2 crime).

S.74 is about non-disclosure.

Question 7

Can you rely on s.76 for the non-disclosure of HIV? Cases to illustrate/expand on this point?

Answer 7

No.
R v B 2006
Court said it didn’t change the nature or purpose of the act (so was s.74)

Cf. Dica and Konzani where the transmission of HIV amounted to GBH (s.20 offence)

Also Leveson’s obiter comments in McNally: if c had directly asked D about HIV and D denied it then consent would be vitiated.

Konzani - C can never consent to the intentional infection of HIV but can consent to the risk of infection.

Question 8

What sort of things might be used for s.75 evidential presumptions? Why is s.75 good?

Answer 8

S.75 is good because D has to actively adduce evidence to rebut the presumptions. Can’t rely on right of silence.

S.75 operates when the prosecution can’t prove s.76, so they seek to prove evidential presumptions. Includes drink, drugs, violence, fear of violence, unlawful detention.
If prove any of these existed must also prove that D KNEW that the circumstances existed.

The presumption may be rebutted fairly easily - D just has to raise an issue as to whether C consented, or he knew of the circs, it is not done on b of probs! Ciccarelli, per Lord Judge
It will then be for the prosecution to beyond a reasonable doubt that C didn’t consent AND that D didn’t reasonably believe in C’s consent.

Question 9

What are the three different ways a person can not consent for s.74?

Answer 9

Agreement by choice (must be active not passive)

Freedom to make that choice (about pressure)

Capacity to make that choice (e.g. Too young or mental incapacity)

Question 10

What are the four cases to remember on agreement by choice?

Answer 10

Consent must be active not passive. Lack of protest is not consent!
C must be fully conscious (Malone)
Wife may choose not to have sex with her husband (RvR)
There is no requirement that force be used for consent to be proven vitiated (Larter)
Drunken consent is still valid consent, regret is not lack of consent! (Bree)

Question 11

What must D do to rebut a s.75 .evidential presumption?

Answer 11

Raise an issue. Issue must be beyond speculative or merely fanciful.
Ciccarelli, per Lord Judge.

Question 12

Which three cases would you use to show that C may not have the freedom to make the choice (to consent)?

Answer 12

R(F) v DPP and A
Here was conditional consent - he ejaculated even though she asked him not to.

Olugboja
She was so scared that she didn’t resist after penetration
This was decided under the old law - the line between submission and consent was for the jury to decide.
Consent was a much more flexible concept but gave rise to difficulties and inconsistencies.

Jheeta
Pressure may vitiate consent
(Faked burglaries and texts from the police in this case)

Question 13

Which case would you use as the authority for the fact that C may not have the capacity to make the choice?

Answer 13

Bree
Drunkeness consent is still consent
Lack of capacity may be temporary
Intoxicated consent will be very fact specific. Must direct the jury to the wording of s.74.

C will automatically lack capacity if too young or sufficiently mentally impaired.

Question 14

What is the Morgan principle?

Answer 14

Honestly held mistaken belief negatives the fault element

This does NOT apply to s.1 (rape) but does apply to other non-fatal offences.

Question 15

What must you prove for the fault element of rape?

Answer 15

That D knows C does not consent, is cadre less as to whether C consents, unreasonably believes that C consents.

Prosecution must prove that some of the presumptions apply
S.75 - aware of circs, non-disclosure
S.76 - intentional deception

Jury to det whether C consented - objective standard of reasonableness. Did D genuinely believe C was consenting a. Was the belief honestly and reasonably held?

Question 16

Which case would you use as the lead in to the criticisms of the act?
What are the criticisms? Two people - outline their views.

Answer 16

Linekar
Prostitute wouldn’t’ve consented had she known D would not pay.
Deception didn’t go to the nature of the act, it wasn’t the issue of sexual gratification. Convicted of procuring sexual intercourse by false pretences (old law)

Fault of the act - there is no offence similar to this. Either rape or not
What about if there is job pressure?

Herring says offence of rape would cover this, says inducement with power. He thinks there should be rules to the ‘seduction game’. Says D takes V’s autonomy to make an informed decision when he deceives.

Bohlander has a different notion of what consent should mean. Thinks Herring takes a politically correct view. Men CAN control themselves, says consent is about the act, not about false representations in the contract.

Question 17

Which side do you take in the Herring v Boulanger debate? Why?

Answer 17

Bohlander.
I think Herring’s argument is paternalistic. A C should be allowed to make a bad decision and learn from it without making D liable for rape. It is as much for C to assess the validity of D’s assurances. If Herring’s line were preferred and put into rules of law then it would be open to endless abuse.
I think Herring afford’s too much time to the context, looking too much at factors which led up to the decision rather than the decision/act itself.

Need to protect the vulnerable in society, but not to the extent to which regret can result in prosecution.
There should be provision in the law to catch active deception - agree with Karl Laird that s.76 should be widened.

Question 18

What are the two cases on conditional consent?

Answer 18

R v B 2006
Non-disclosure of HIV. Consent with condition
Karl Laird : court refused to equate non-disclosure with deception, so was a s.74 case.

Assange
Conditional on condom-use
S.74 cited R v B 2006

Question 19

What may the jury consider when assessing the fault element?

Answer 19

All the circumstances EXCEPT:
Bramham 2013
Can’t so spider subjective delusional beliefs! He though he was attractive to all women….
Jury wasn’t directed as to mental illness. It is an objective, reasonable standard, so can’t take D’s subjective beliefs into account.

G v UK 2011
Art 8 and Art 6 claims failed. Community law doesn’t govern criminal law.
Art 8 engaged but sentencing was proportionate.
Here was a SL imposition - boy 15 raped girl 13. Didn’t matter if she consented.

Question 20

S.2
What is it
Cases?

Answer 20

Sexual penetration with a part of the body or anything else.
Must be sexual and there must be lack of consent.
Oral penetration NOT covered, must be anus or vagina

The meaning of sexual is judged objectively (Court) it is irrelevant if the D had a secret sexual motive if the act wasn’t itself sexual (George - feet).
Circumstances may make the act sexual (R v H)

Nb these are all sexual assault case, not assault by penetration, but the points of law remain relevant.

Mens rea - intentional penetration and no reasonable belief in consent

Question 21

S.3?

5 cases

Answer 21

Sexual touching and lack of consent

Court - sexual judged objectively, sexual touching can be through clothing. D’s purpose (here a buttock fetish) is irrelevant.

Tabassum - medical database breast fondling. S.76 here - deception as to nature of act.

George - foot fetishist. Not sexual. Motive irrelevant. BUT David Ormerod points out that now it may constitute sexual touching since circumstances make the act sexual.
Cf
R v H 2005 - do you fancy a shag, touching through clothing, circumstances made the act sexual.

Heard
Genitals up and down leg. Drunk. Xmas party. Voluntary intoxication is no defence. So sexual assault.

Question 22

What is the men’s rea for sexual assault (s.3)?

Answer 22

For TOUCHING to be intended. There is no requirement for sexual touching to be intended.
Heard 2007 (Xmas party, genitals up and down leg)

Question 23

What do you need for s.4 (causing a person to engage in sexual activity without their consent)?
Case?

Answer 23

A factual link between D’s act and the prohibited harm (White). D’s act must be the operating and substantial cause (Smith), more than minimal (Cato), but need not be the only cause (Pagett).

Merely encouraging C to engage in the sexual activity will not suffice.

Devonald - father pretending to be Cassie. S.76 applied to a s.4 offence.

Question 24

What defences are available for sexual offences?

Answer 24

All.

Intoxication (Heard - voluntary intoxication will not act as a defence, here touching was intended, so D convicted of sexual assault. S.3 is a basic intent crime!)
D’s mistaken belief as to C’s consent because of intoxication will automatically render his belief unreasonable.
Intox can operate as a defence where prevents D from forming the full mens rea, but have to question whether this would be likely.

Question 25

What has Karl Laird had to say on deception and consent? What are the four possibilities on reform?

Answer 25

S.76 only covers active deception (RvB), it was said in McNally that s.76 wouldn’t cover wealth deceptions.
So conditional consent (RvB and Assange) have to use s.74
Four points for reform:
A. Herring approach. Any deception as to any material fact =s.74. No. Public policy. Autonomy too far. If law is to criminalise all forms of n there should be some equivalence between men and women. E.g. Woman says she’s on the pill and isn’t.

B. Rebecca Williams. Place all emphasis on mens rea. Could lead to difficulties. She wants them to recognise categories of deception, rather than blanket wording. Not v practical. Boundaries between what regulates consent and what doesn’t are hard to draw.

C. Widen s.76. Overrule McNally. Karl Laird doesn’t think this is a good idea. Idea = s.76 for grave offences

D. Parliament to enact an offence similar to the old law procurement offence. And could make a special provision for sexually transmitted diseases.
Karl Laird sees the failure to enact a procurement-type offence as the reason for a lot of the difficulties in the present law.
The extent to which s.74 covers deception is crucial and will be the next thing to be tackled by the courts.

Question 26

What is the Serious Crime Act 2015 about?

Answer 26

Creates a new offence for domestic abuse which can be conducted without violence.
For controlling or coercive behaviour.
Idea = nip in bud early, before escalates to the extent that someone kills someone else. To acknowledge the wrong. Helps people understand domestic abuse, and recognises repeated patterns of behaviour.