Hotlist Flashcards
Consent
What is consent?
s74 Sexual Offences Act 2003
A person consents if he agrees by choice, and has the freedom and capacity to make that choice.
Must be true consent- cannot be gained through fear or threats. Not having freedom and capacity may be something like a person with a mental disability, so its not true consent.
Consent
The situation whereby a person who is HIV positive and is aware of his condition…
- If the accused makes no mention of his condition this will NOT be rape. However, it may constitute an offence under the Offences Against the Person Act 1861 (s18/20)
- If the accused positively assures the complainant that he is not HIV positive (lied) this WOULD constitute rape.
Conditional consent
In some cases when considering consent under s74, consent was considered not to be true consent, either because of a condition upon which consent was given was not complied with or because of a material deception.
What three sets of circumstances exist which may vitiate consent where the condition is breached?
- Assange v Sweden: not wearing a condom when this was part of the consent.
- R(F) v DPP: ejaculation intentional/accidental - the former vitiating consent and the latter not.
- McNally v R: Deception can vitiate V’s consent if it removes their freedom of choice, in this case, lying about being a male when actually female. Deception about something like wealth (saying they’re rich and they turn out not to be), etc. is insufficient.
Consent
Sections 75 and 76 of the Sexual Offences Act 2003 allow presumptions to be made in relation to the absence of consent. They apply to offences under:
Rape (s 1)
Assault by penetration (s 2)
Sexual assault (s 3)
Causing another person to engage in sexual activity without consent (s 4)
Consent
What are evidential presumptions about consent?
s75 Sexual Offences Act 2003
Basically, that circumstances themselves show that the victim did not consent, e.g a victim who is asleep cannot verbalise their refusal that they do not consent.
If the defendant did the relevant act, as defined in section 77 (the sexual activity within sections 1-4), and the circumstances specified in subsection (2) exist and the defendant knew they existed, then the complainant is to be taken not to have consented.
Up to the defendant to prove the victim consented
Consent
Evidential presumptions
(2) The circumstances are that—
s75 Sexual Offences Act 2003
(a) Any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him;
(b) Any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that 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 complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented;
(f) Any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.
Consent
What are conclusive presumptions about consent?
s76 Sexual Offences Act 2003
(1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed—
(a) That the complainant did not consent to the relevant act, and
(b) That the defendant did not believe that the complainant consented to the relevant act.
(2) The circumstances are that—
(a) The defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
(b) The defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.
Consent
Conclusive presumptions
It is important to emphasise the fact that s76 deals with situations where the defendant either:
- Deceives the victim regarding the nature and purpose of the act (e.g pretending that inserting a finger into vagina saying it’s for medical reasons).
- Induces the victim to consent to the relevant act by impersonating a person KNOWN personally to the complainant (e.g pretending to be husband).
Consent
Common examples of what would not constitute conclusive presumptions?
- Deceiving someone into having sex more frequently than they would have done otherwise (hasn’t been deceived).
- Making a false promise to marry to encourage someone to have sex, nor a false promise to pay in exchange for sexual intercourse.
Sexual Assault
Assault by penetration
s2 Sexual Offences Act 2003
(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else (e.g dildo),
(b) the penetration IS sexual,
(c) B does not consent to the penetration, and
(d) A does not reasonably believe that B consents.
Penalty:
- Indictment– Life Imprisonment
Sexual Assault
What parts of the body does assault by penetration apply to?
Vagina or anus
NOT the mouth.
Sexual Assault
What is the definition of the term “sexual”?
s78 Sexual Offences Act 2003
Penetration, touching or any other activity is sexual if a reasonable person would consider that—
(a) Whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual (e.g penetrative sex/ masturbation).
(b) Because of its nature, it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both), it is sexual (e.g Dr. examination can be non-sexual but if done in a certain way then…).
Sexual Assault by Touching
s3 Sexual Offences Act 2003
(1) A person (A) commits an offence if—
(a) he INTENTIONALLY touches another person (B) (can be through clothing),
(b) the touching is sexual,
(c) B does not consent to the touching, and
(d) A does not reasonably believe that B consents.
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 10 years.
Sexual Assault
What is the definition of the term “touching”?
Section 79(8) states that touching includes touching:
- With any part of the body.
- With anything else.
- Through anything.
The part of the person touched does not have to be a sexual organ or orifice, can be clothing. A jury must ask themselves (as reasonable people) two questions:
- Could the touching be sexual?
- Has the touching been sexual?
Causing a person to engage in sexual activity without consent
s4 Sexual Offences Act 2003
(1) A person (A) commits an offence if—
(a) he intentionally causes another person (B) to engage in an activity (can be a conversation),
(b) the activity is sexual,
(c) B does not consent to engaging in the activity, and
(d) A does not reasonably believe that B consents.
Aggravating factors:
- Large age difference between offender and victim
- General vulnerability of victim
- Use of weapons to commit the offence
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 10 years.
Rape of a child under 13
s5 Sexual Offences Act 2003
(1) A person commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of another person with his penis, and
(b) the other person is under 13.
Penalty:
- Indictment– Life Imprisonment
Assault of a child under 13 by penetration
s6 Sexual Offences Act 2003
(1) A person commits an offence if—
(a) he intentionally penetrates the vagina or anus of another person with a part of his body or anything else,
(b) the penetration is sexual, and
(c) the other person is under 13.
Penalty:
- Indictment– Life Imprisonment
Sexual assault of a child under 13 without penetration
s7 Sexual Offences Act 2003
(1) A person commits an offence if—
(a) he intentionally touches another person,
(b) the touching is sexual, and
(c) the other person is under 13.
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 14 years.
Causing or inciting a child under 13 to engage in sexual activity
s8 Sexual Offences Act 2003
(1) A person commits an offence if—
(a) he intentionally causes or incites another person (B) to engage in an activity,
(b) the activity is sexual, and
(c) B is under 13.
(2) A person guilty of an offence under this section, if the activity caused or incited involved—
(a) penetration of B’s anus or vagina,
(b) penetration of B’s mouth with a person’s penis,
(c) penetration of a person’s anus or vagina with a part of B’s body or by B with anything else, or
(d) penetration of a person’s mouth with B’s penis,
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 14 years (if s2 then LIFE)
The Sexual Offences (Amendment) Act 1992 provides what to a victim/ complainant of most sexual offences?
Anonymity for their lifetime, nothing may be published which may give rise to identification– it applies to all sexual offences under part 1 of the Sexual Offences Act 2003 (such as rape, assault by penetration, sexual assault by touching etc) as well as attempts and conspiracy to commit such acts.
It does not apply to offences dealing with sex with an adult relative or sexual activity in a public lavatory.
Under s3 of The Sexual Offences (Amendment) Act 1992, the prohibition on publicity may be lifted by order of the court if…
- Publicity is required by the accused so that witnesses will come forward and the conduct of the defence is likely to be seriously prejudiced if the direction is not given; or
- The trial judge is satisfied that imposition of the prohibition imposes a substantial and unreasonable restriction on the reporting of the proceedings and it is in the public interest to relax the restriction.
Sexual activity with a child
s9 Sexual Offences Act 2003
(1) A person aged 18 OR OVER (A) commits an offence if—
(a) he INTENTIONALLY touches another person (B),
(b) the touching is SEXUAL, and
(c) either—
(i) B is under 16 (proof of age required) and A does not reasonably believe that B is 16 or over, or
(ii) B is under 13 (no defence available).
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 14 years (if s2 = 14 years)
Causing or inciting a child under 16 to engage in sexual activity
s10 Sexual Offences Act 2003
(1) A person aged 18 or over (A) commits an offence if—
(a) he INTENTIONALLY ‘causes’ or ‘incites’ another person (B) to engage in an activity,
(b) the activity is SEXUAL, and
(c) either—
(i) B is under 16 and A does not reasonably believe that B is 16 or over, or
(ii) B is under 13.
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 14 years (if s2 = 14 years)
Engaging in sexual activity in the presence of a child
s11 Sexual Offences Act 2003
(1) A person aged 18 or over (A) commits an offence if—
(a) he INTENTIONALLY engages in an activity,
(b) the activity is SEXUAL,
(c) for the purpose of obtaining sexual gratification, he engages in it—
- (i) when another person (B) is present or is in a place from which A can be observed, and
- (ii) knowing or believing that B is aware, or intending that B should be aware (doesn’t actually have to be a witness), that he is engaging in it, and
(d) either—
- (i) B is under 16 and A does not reasonably believe that B is 16 or over, or
- (ii) B is under 13.
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 10 years
