Rape

Question 1

What is the statutory provision governing the offence of rape?

Answer 1

s.1 (1) Sexual Offences Act 2003

Question 2

s.1(1) SOA 2003- KEY POINTS

Answer 2

intentionally penetrates the vagina, anus or mouth of another person with his penis
no consent and no reasonable believe of consent

Question 3

AR of Rape

Answer 3

Penetration of V,A,M + absence of consent

Question 4

MR of Rape

Answer 4

Intention + no reasonable belief in consent

Question 5

the ‘continuing act’ theory- case law- police officer’s foot

Answer 5

Fagan v MPC [1969]

Question 6

PENETRATION IS A CONTINUING ACT- STATUTE + case law

Answer 6

s.79 (2)- Kaitamaki [1985]- if consent is given, then withdrawn and penetration continues that’s also rape!

Question 7

Rape can also give rise to accomplice liability- statute+ case law

Answer 7

ss.44 to 46 Serious Crime Act 2007 + DPP v K and B [1997]

Question 8

Rape within marriage- case law- clue fairly recent. Amended statute.

Answer 8

R v R [1991] + s.142 Criminal Justice and Public Order Act 1994

Question 9

DPP v Morgan- old test v new test- describe

Answer 9

Old test was purely subjective; test under SOA 2003 is both S and O- honest belief and reasonable belief

Question 10

Why is the case of B [2013] relevant as to reasonableness of D’s belief of consent?

Answer 10

delusional beliefs are still classed as irrational

Question 11

What if a belief in consent was honest and reasonable?- think: MR not satisfied

Answer 11

This serves as a defence to a rape charge

Question 12

Essay Question: Reform on Rape. What bill did not pass? clue: defences

Answer 12

Rape (Defences) Bill 2008- sought to prohibit the use of sleepwalking as a defence to rape- Failed

Question 13

What are the 3 elements of valid consent?

Answer 13

FREEDOM, CHOICE, CAPACITY- S.74

Question 14

What is s.76 about? Give example with case law where it is applied successfully- remember 2 subsections

Answer 14

irrebuttable presumptions- D is guilty if circumstances are met
Flattery [1877]- deceive C about nature/purpose of act- sex= surgical operation
Elbekkay [1995]- impersonating ppl known to C- pretended to be her BF

Question 15

What is s.75 and why is it different to s.76?

Answer 15

Rebuttable presumptions. asume C didn’t consent, but D can call evidence to disprove, unlike s.76 where conviction arises regardless

Question 16

Violence is a condition under s.75. Why may this be problematic?

Answer 16

C may have wished sado-masochistic sex. Also the term violence is not defined in the SOA 2003.

Question 17

In relation to consent (and subsequent payment for sex), why is the case of Linekar [1995] significant?

Answer 17

C was a prostitute, who agreed to have sex with D, in return for £25. D did not pay. NO RAPE. C provided consent for the act, regardless of the payment.

Question 18

Deception and consent. Give examples of scenarios where deception vitiated consent.- problematic area of law

Answer 18

Assange v Swedish Prosecution Authority [2011] - condom (no s.76, but s.74)
R (F) v DPP [2013]- ejaculation in vagina
McNally [2013]- false gender

Question 19

What circumstances are ‘too broadly related to consent’ to have the capacity to vitiate it?

Answer 19

B [2006]- failed to disclose HIV. Not a rapist but s.20 GBH
R v Lawrance- lied that he had a vasectomy. Court distinguished physical barriers in Assange/ R (F) to be more closely connected

Question 20

If in Fear cannot give valid consent. clue: submission

Answer 20

R v Olugboja [1982]

Question 21

no consent if intoxicated

Answer 21

Bree [2007]; Malone [1998]

Question 22

no consent if asleep

Answer 22

Larter and Casleton [1995]

Question 23

what are the 4 arguably grey areas of consent?

Answer 23

submission- R v Doyle;
non-disclosure- R v Konzani; Re EB; R v McNally
lies/deception- R v Lawrance;
intoxication- R v Lang; R v Bree; R v Kamki