sexual assault Flashcards

Question

DPP v Morgan [1975]

Answer 1

Defendants were a group of men, including husband and gang raped wife despite struggles and protests, they said they thought she was consenting because husband told them she was. Result of case was that their conviction was upheld because no one including HOL believed that they thought Mrs Morgan was consenting, but point of law which upset people because judge told jury to convict them if they had no reasonable ground for their belief. This was wrong at common law because test at common law was a subjective test and if the men truly did believe in consent then even though they had no reasonable grounds for this, they were not rapists. House of Lords which decided that an honest belief by a man that a woman with whom he was engaged with sexual intercourse was consenting was a defence to rape, irrespective of whether that belief was based on reasonable grounds. It remained the law until the enactment of the Sexual Offences Act 2003.

Answer 2

Hughes says sexual offences act deliberately departs from the subjective model. It does not make genuine belief enough. For defendant to escape now there must be: 1) Genuine belief in consent 2) This belief must be reasonable under the circumstances

Answer 3

B prevents D relying on a belief which is ‘plainly irrational’ and thus (by definition) unreasonable.But B acknowledges (obiter) that a jury might find D’s belief is not unreasonable where it is not irrational although ‘most people would not have held it’. Possibilities might include D of less than ordinary intelligence or with limited ability to recognise behavioural cues. Where Lord Hughes talks about reasonable belief. Case where D made V leaves. He persisted in having sex with partner where she said she did not want to, she submitted to intercourse without consenting. When he was interviewed to this possible rape, he said he never had sex without consent, this raised question that he really believed his partner was consenting when he was not. B suffered from paranoid schizophrenia, this raised question whether circumstances whether jury should take into account whether D was reasonable for D to hold this belief, could you take into account that he was ill. COA held no to the extent that the belief, if existed was delusional and produced by illness then he could not rely on it as a circumstance under subsection 1©. Fact of law – If you are delusional or belief is induced by illness, you cannot rely on circumstance under section 1(c).

Answer 4

Defendant was bipolar, this might have let to him overriding victim’s objections to sex. He thought she was not entitled to hold consent. Held: not valid

Answer 5

Ð act itself might not be obvious at all but if it is capable of being so, the jury can go through this process. In this case of sexual touching under s3, the defendant grabbed the victim by her tracksuit bottoms and he said, “fancy a shag?”. This touching was not inherently sexual but it was capable of being so and so it was open to the jury to decide if it was rendered sexual by what they heard of the circumstances and purpose of the defendant.

Answer 6

Lord Wolff said the way the definition is phrased you do not necessarily have to make contact through the clothing, because it s3 includes touching through clothing. So touching the clothing in a sexual way might be under s3.

Answer 7

¥ sexual conversation could be incitement inciting a child to sexual activity under s8, same problem arises what is activity. COA was prepared to accept that if victim as drawn into a conversation which then involved her sending sexual explicit photos, this could be sexual activity, so sexting. Notion of activity that although it has to be sexual in nature, penetration has to include merely a conversation between A and B. ¥ Possible penetration which is perpetrated by a woman in relation to a man, a woman could impersonate someone known to the victim a man for the purpose of tricking him into sex. (a woman needs to penetration) if d impersonated this would fit in s4. The penalty for s4 in a case involving penetration can be as much as life sentence then you can see how rape by a female can be of equivalent seriousness, it is not labelled rape under s1 but it may amount to an equally sexual crime under s4. Q

Answer 8

Inciting’ here means encouraging under s8 D said "show us your fanny", held: guilty of inciting sexual activity under s8, whether or not d intended the sexual activity is irrelevant to D's liabiltity.

Answer 9

Consent is irrelevant (though it may go to mitigation of sentence, particularly where D is also young, in relation to s.5 rape

Answer 10

Strict liability applies re: age – it is irrelevant that D believes V is over 13, even if the belief is reasonable. ¥ G, a 15 year old boy had sex with a girl aged 12. Initially she said she did not consent, which would have led prosecution to bring a serious charge of s5, statutory rape, he pleaded guilty but said that she did consent and he thought she was 15. The case proceeded to a hearing, the girl refused to give evidence but she did admit misleading him about her age. Decided to sentence him on bases that his story was the true one, but he then argued that the whole conviction was unfair and violation to a right of a fair trial under article 6 because of the level of strict liability that was being imposed upon him. But both the SC and EUHR held that it was not, article 6 may guarantee fair process but does not dictate the content of criminal law and parliament is entitled to use strict liability. The courts work on presumption of mens rea, if parliament intends strict liability the courts will follow and parliament made its argument extremely clear. An argument which split the court was an article 8 argument, right to a private life, this was about proportionality, should he have been ultimately convicted of a rape crime or should prosecution looked at lesser options, under s9 sexual activity for child combined with s13 which enabled a person under age of 18 to be prosecuted, a lesser offence of a max of 5 years, was it disproportionate as to what he had done, but time it got to SC, the COA reduced the sentencing. Majority in SC thought that it was not disproportionate on basis of more serious offence, minority thought it was based on age and circumstances.

Answer 11

Suggests that d's status (i.e male, hiv positive) is only relevant to consent where there is active deception. however, smith and hogens objects.

Answer 12

d had sexual intercourse with v, a prostitute, having promised money. d never intended to pay. v said she would not have had sex if she knew. argued deception of purpose. held: not rape, her consent remained effective, she was not decieved about nature nor purpose (for his sexual gratification). Thus, likely decpeion of d's not v's purpose.

Answer 13

test for capacity 1) a person must be able to understand the information relevant to making it, and 2) must be able to weigh up the information in the balance to arrive at a choice. she lacked capacity to consent because of her mental disorder to do the second one.

Answer 14

if someone is heavily intoxicaated, she may fail the test for capacity set out in c.

Answer 15

jheeta - only in the rarest of cases

Answer 16

some deceptions (such as, for example, in relation to wealth) will obviously not be sufficient to vitiate consent. but deception as to gender is. This was a positive deception because his online profile say male, and d never corrected v about this mistake.

Answer 17

D pulled a girl across his knee and spanked her clothed bottom. when asked why, he said bottom fettish. d was charged with indecent assualt. this is a case where d's touching is unlikely to be considered sexual by nature but made sexual because of d's purposes

Answer 18

s8 incitement does not require the targetting of a particular child: in this case he left a note in the toilet asking for sex with any child. problem: the use of strict liability has potential to cause problems. e.g where x writes a blog about how amazing sex is and that people should have sex as soon as possible. d did not intend to encourage children to have sex and does not need to foresee that children will even read his post. however, this has the potential to encourage children age 12 or under to engage in sexual activity. thus, d's conduct satisfies the elements of the offence, and he must rely on prosecutorial discretion to avoid liability.

Answer 19

where person is under 18, can be an offence under s13. however, in the case of r v g, he was convicted under s5, he appealed due to the home office guidance. but this was rejected. in a problem question, due to the guidance charge him with s13 but highlight the alternative guilty s5 offence, and note the case of r v g, but likely s13 is preferred due to lesser sentence also.

Answer 20

If a victim is drunk she can still give consent, will be left to jury to decide whether V was so drunk that she could nt give effective consent.

sexual assault Flashcards

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