rape Flashcards
(27 cards)
AR of Rape
penetration of vagina, anus or mouth + absence of consent
MR of Rape
intention + no reasonable belief in consent
the ‘ continuing act’ theory - case law - police officer foot
Fagan v MPC [1969]
DPP v Morgan - old test v new test
old test was purely subjective ; test under SOA 2003 is both S and O - honest belief and reasonable belief
what are the 3 elements of valid consent?
freedom, choice, capacity. s.74
what is s.76 about? give case law
irrebutable 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. pretending to be her bf.
what is s.75 and why is it different to s.76?
rebuttable presumptions. assume C didn’t consent , but D can call evidence to dispute, unlike s.76 where conviction arises regardless
penetration is a continuing act
s.79 (2) - Kaitamaki [1985] - if consent is given, then withdrawn and penetration continues - that is rape!
no consent if asleep
Larter v Casleton [1995]
rape can also give rise to accomplice liability
ss.44 to 46 Serious Crime Act 2007
DPP v K and B [1997]
rape within marriage
R v R [1991]
in relation to consent and subsequent payment for sex, why is the case for Linekar [1995] significant?
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 payment
B [2013] - consent.
delusional beliefs are still classed as irrational
what if a belief in consent was honest and reasonable?
serves as a defence to rape charge.
s.1 (1) SOA 2003 - key points
intentionally penetrates the vagina, anus or mouth of another person with his penis. no consent and no reasonable belief of consent
violence is a condition under s.75. why may this be problematic
C may have wished sado masochistic sex. also , the term violence is not defined in the SOA 2003
deception and consent. give examples where deception vitiated consent
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
what circumstances are ‘too broadly related to consent’ to have the capacity to violate it
B[2006] - failed to disclose HIV. not a rapist , but s.20 GBH
R v Lawrance - lied that he had a vasectomy - court distinguished between physical barriers in Assange to be more closely connected.
if in fear cannot give valid consent
R v Olugboja [1982]
no consent if intoxicated
Bree [2007]
Malone [1998]
what are the 4 arguably grey areas of consent
submission - R v Doyle
non- disclosure- R v Konzani, Re EB, R v McNally
lies/ deception - R v Lawrance
intoxication - R v Bree
what is s.3 of SOA 2003
sexual assault
what is the AR for sexual assault
o Touching another
o s.79(8): “Touching includes touching — (a)with any part of the body, (b)with anything else, (c)through anything…”
case which said that touching a person’s clothes amounts to touching the victim
H [2005] - d grabs v by the tracksuit bottoms
