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Criminal Law > Rape > Flashcards

Rape Flashcards

1
Q

where does law for rape come from

A

Sexual Offences Act 2003

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2
Q

what is s.1(1) SOA 2003

A

s.1(1); a person(A) ommits offence if D -
(a) intentionally penetrates vagina/anus/mouth of another (B) with his penis
(b) B doesnt consent to penetration
(c) A doesnt reasonably believe B consents

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3
Q

what is s.1(2) SOA 2003

A

s.1(2); whether belief in consent is reasonable is determined in regard to all the circs, including any steps A has taken to ascertain whether B consents

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4
Q

what is the AR of rape

A

D penetrates B’s vagina/anus/mouth (conduct) +
B doesnt consent (circumstance)

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5
Q

what are the conduct elements of rape

A

AR; D penetrates B’s vagina/anus/mouth
MR;intention to penetrate

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6
Q

what are the circumstance elements of rape

A

AR; B doesnt consent
MR; D lacks a reasonable belief in consent

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7
Q

MR of rape

A

intention to penetrate (conduct)+
D lacks reasonable belief in consent(circumstance)

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8
Q

who can commit rape

A

men only

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9
Q

where is force to penetrate covered

A

s.2 + s.4 SOA 2003

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10
Q

what happened/ is the legal principle in R v R (1991)

A

marital rape

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11
Q

what is s.79(2) SOA 2003

A

penetration = continuing act from entry-withdrawal

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12
Q

what cases support s.79(2) (penetration as a continuing act)

A

-R v Kaitamaki; D realised after penetration that V wasnt consenting but continued, moment consent was revoked he satisfied AR for rape
-R v Leaver; confirms old law

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13
Q

what happened/ was the legal principle in R v Kaitamaki

A

-D realised after penetration that V wasnt consenting but continued
-moment consent was withdrawn he satisfied AR for rape
-conf in R v Leaver

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14
Q

what is s.79(9) SOA 2003 and give the case that supports it

A

-‘vagina’ includes vulva
-R v F (2002); gave broad definition to vulva

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15
Q

what is s.79(3) SOA 2003

A

-references to part of body surgically constructed (gender reassignment)

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16
Q

what are the 3 ways V’s non consent is determined

A

-s.76 Conclusive presumptions about non consent (cannot be rebutted by D)
-s.75 evidential presumptions about non consent (can be rebutted by D)
-s.74 general definition of consent

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17
Q

what is s.76(1) SOA 2003

A

-s.76(1); if proven D did relevant act + any of the circs specified in subsection (2) existed it is conclusively presumed:
(a)V did not consent to relevant act
(b)D didnt believe V consented to act

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18
Q

what are the circs in s.76(2) SOA 2003

A

(a) D intentionally deceived complainant as to nature or purpose of the relevant act or
(b)D intentionally induced the complainant to consent to relevant act by impersonating a person personally known to the complainant

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19
Q

what is s.76(2)(a) and the cases that support it

A

-s.76(2)(a); deception of nature/ purpose of act
-R v Williams; open air passage to improve singing
-R v Flattery; surgical operation

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20
Q

what happened / is the legal principle of R v Williams

A

-D said he was opening air passage to improve V’s singing
-V deceived as to nature/purpose of act

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21
Q

give 5 cases + legal principles about s.76(2)(a)

A

-R v Williams; help singing
-R v Flattery; operation
-Assange v Swedish Prosecution Authority; sex without condom is same in nature as sex with condom
-R v Lineker; D didnt pay prostitute, V not deceived by nature
-R v Devonald; 16yo exposed himself online to 20yo woman who was actually ex-gf’s dad, s.76 applied

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22
Q

what happened/ is the legal principle in Assange v Swedish Prosecution Authority

A

-sex without condom is the same in nature as with condom

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23
Q

what happened/ is the legal principle in R v Lineker

A

-D didnt pay prostitute
-ct said not rape as not deceived in nature

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24
Q

what happened/ is the legal principle in R v Devonald

A

-16yo exposed himself online to ‘20yo woman’ who was his ex-gf’s dad
-s.76 applied

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25
Q

what is s.76(2)(b) and the cases that support it

A

-impersonation
-R v Elbekkay; V assumed D was her husband when he got in bed and had sex

26
Q

what is s.75(1)

A

-evidential presumptions
-(a) did relevant act
(b) did any circs specified in subsection (2) and
(c) D knew those circs existed
UNLESS there is sufficient evidence to raise issue as to whether V consented or whether D reasonably believed it

27
Q

what are the 6 circs for evidential presumptions outlined in s.75(2)

A

(a)threats of violence
(b)threats to 3rd parties
(c)unlawful detention
(d)sleep and unconsciousness
(e)physical disability
(f) drug assisted

28
Q

explain s.75(2)(a) + (b) threats of violence (evidential presumptions)

A

-threats need not emulate from D
-must be at time of act or immediatley before it

29
Q

what cases support s.75(2)(a) + (b) evidential presumptions

A

-R v Dagnall; police intervened before D raped V, no penetration but V sufficiently convinced she would be raped
-R v Brown; sadomasochistic gays + consent is no defence to ABH/GBH

30
Q

explain s.75(2)(c) unlawful detention and the cases that support it

A

R v David T (2005); D kidnapped former lover; rape

31
Q

explain s.75(2)(d) unconsciousness + sleep and the cases involved

A

-R v Larker; D had sex with 14yo who was asleep; rape
-R v Cooper(2009); Lady Hale said “One does not consent to sex in general. One consents to this act of sex with this person at this time with this place”

32
Q

what happened/ is the legal principle in R v Dagnall

A

-police intervened before D raped V, no penetration but V sufficiently convinced she would be raped

33
Q

what happened / is the legal principle in R v Brown

A

-sadomasochistic gays + consent is no defence to ABH/GB

34
Q

what happened/ is the legal principle in R v David T(2009)

A

-D kidnapped former lover; rape

35
Q

what happened/ is the legal principle in R v Larker

A

R v Larker; D had sex with 14yo who was asleep; rape

36
Q

what happened/ is the principle in R v Cooper (2009)

A

-Lady Hale said “One does not consent to sex in general. One consents to this act of sex with this person at this time with this place”

37
Q

explain s.75(2)(e) physical disability for evidential presumptions

A

-no consent if physical disability means inability to communicate consent

38
Q

explain s.75(2)(f) drug assisted and the cases involved in evidential presumptions

A

-causing V to take, without consent, a substance capable of enabling V to be stupefied or overpowered
-D can use force or deceive V into self-administration
-R v Bree(2007); despite intoxication + fading consciousness D not conv of rape

39
Q

what happened / is the legal principle in R v Bree(2007)

A

-despite intoxication and fading consciousness D not convicted of rape

40
Q

what 3 cases/ legal principles say what happens when an evidential presumption is rebutted

A

-Baroness Scotland (Government Minister): Home Affairs Committee 5th Report 2022; if judge is satisfied there is sufficient evidence to justify putting the issue of consent to the jury, the issues have to be proved by the prosecution in the normal way
-R v Zhang(2007); trial judge determines if evidence is sufficient to rebut presumption, if there is, go to s.74

41
Q

what happened/ is the legal principle in Baroness Scotland (Government Minister): Home Affairs Committee 5th Report 2022

A
  • if judge is satisfied there is sufficient evidence to justify putting the issue of consent to the jury, the issues have to be proved by the prosecution in the normal way
42
Q

what happened/ is the legal principle in
R v Zhang(2007)

A

-trial judge determines if evidence is sufficient to rebut presumption, if there is, go to s.74
-case of sleep/unconsciousness s.75(2)(d)
-D argued judge elevated s.75 evidential presumption to a s.76 conclusive presumption by directing jury to find C did not reasonably consent if unconscious
-conv upheld

43
Q

what is the general definition of consent in s.74 SOA 2003

A

-V consents if they agree by choice and has the freedom and capacity to make that choice (whether there is consent is for jury to decide)

44
Q

give 6 legal principles/ cases regarding freedom to choose (s.74 gen def consent)

A

-no violence/ physical pressures/ coercion
-R v Wellard; kidnapping
-R v Olugboja; submission is not consent
-R v Kirk; jury must draw distinction between ‘willing submission’ and real consent
-R v Doyle; V’s response to intercourse must be physically enthusiastic
-R v Ali; no true consent where vulnerable/immature individual is groomed

45
Q

what happened/ is the legal principles in R v Wellard and R v Olugboja

A

-R v Wellard; kidnapping negates freedom to choose
-R v Olugboja; submission is not consent

46
Q

what happened/ is the legal principle in R v Kirk

A

-jury must draw distinction between ‘willing submission’ and consent

47
Q

what happened/ is the legal principle of R v Doyle

A

-V’s response to intercourse must be physically enthusiastic

48
Q

what happened/ is the legal principle in R v Ali

A

-no true consent where vulnerable / immature individual is groomed

49
Q

give 6 legal principles / cases regarding deception and freedom (s.74 gen def consent)

A

-R v B(2006); failure to disclose HIV status is not rape
-Assange v Swdish Prosecution Authority; lying about condom can only viiate sex if V made clear sex was conditional on D wearing it
-R (on the applicant of F) v DPP; V deprived of choice when D claimed he couldnt ejaculate inside her and did
-R v McNally; V deceived believing D was male
-R(on app of Monica) v DPP; sex w/ undercover cop not rape as not closely connected to performance of relevant act/ amount to impersonation
-R v Lawrence; lies about fertility not sufficient to deprive V of capacity/freedom to choose

50
Q

what happened / is the legal principle in R v B (2006)

A

-failure to disclose HIV status is not rape
-Q is did V consent to sexual act NOT did V consent to sexual act with HIV pos person

51
Q

what happened / is the legal principle in Assange v Swedish Prosecution Authority

A

-lying about wearing condom can vitiate consent IF V made it clear that sex was conditional on the D wearing a condom

52
Q

what happened / is the legal principle in R (on the applicant of F) v DPP

A

-V deprived of choice when D claimed he wouldnt enjaculate inside her but did

53
Q

what happened / is the legal principle in R v McNally

A

-V deceived into believing D was male
-V deprived of choice to have sex with a man

54
Q

what happened / is the legal principle in R (on the application of Monica) v DPP

A

-V had sex with undercover cop
-didnt vitiate consent for the purposes of sexual offences unless it was closelt connected to performance of relevant act or amount to impersonation

55
Q

what are the legal principles and cases involved with capacity to choose/ voluntary intoxication (s.74 gen def consent)

A

-R v Bree(2007); drunken consent = consent
-R v H(2007); V not remembering verbal consent doesnt preclude the jury finding absence of consent

56
Q

what happened / is the legal principle in R v Bree

A

-drunken consent = consent

57
Q

what happened / is the legal principle in R v H (2007)

A

-V not remembering verbal consent doesnt preclude jury finding absence of consent

58
Q

what is the case involved with capacity to consent (s.74 gen def consent)

A

-R v Kamki; D had sex with very drunk V who was initially asleep

59
Q

what 8 factors(??) came from R v Kamki

A

(a)V consents if they agree by choice+ has freedom /capacity to make that choice
(b)no freedom/capacity to choose when unconscious
(c)where a person has some degree of consciousness further consideration must be applied
(d)drunk ppl can consent
(e)alcohol affects choice/inhibitions
(f)temp loss of capacity to consent isnt consent
(g)consider degree of capacity
(i) if V did have capacity, did they actually consent

60
Q

where is reasonable belief in consent (circ element of MR) considered

A

-dealt with via conclusive or rebuttable presumptions (s.76/75)
-objective test whether D’s belief as to consent was a reasonable belief

61
Q

?????????/

A

(1)knows or intends that Vdoes not consent
(2)was reckless or gives no thought to whether V consented
(3) he otherwise does not reasonably believe that V consents (covers honest but reasonable belief in consent)

Criminal Law (17 decks)

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