Sexual offences Flashcards
(21 cards)
What is the MR for rape
- intention for penetration
- no reasonable belief in consent
What is the AR for rape
- A penetrated the vagina, anus, or mouth of B with his penis
- and without B’s consent
What is the age for rape
over the age of 10
- relationship between A and B is also irrelevant
R v Bree - lack of consent
- intoxication
- no consent due to lack of capacity
- D claimed that he had reasonably believed that C consented
- she couldn’t consent because she was drunk
- D guilty of rape
how to analyse whether B lacked consent
subjective mind of B
- whether B was a willing participant to the sexual contact
R v McFall 1994 - lack of consent
- A kidnapped B
- A indicated hat he wanted to have sex with B
- B accepted as she feared for her safety
- B pretended to consent during act
- A was charged with rape
- B was not subjectively consenting
definition of consent - S74
‘a person consents if he agrees by choice, and has the freedom and capacity to make that choice’
what is S75 about
- set of EVIDENTIAL PRESUMPTIONS of non- consent
- sets of facts which, if proved, require A to provide some counter evidence to prevent a finding of non consent
what is S76 about
- set of CONCLUSIVE PRESUMPTIONS of non consent
- sets of facts which, if proved, will be enough to establish non consent
S76(2) circumstances of conclusive presumptions
- A intentionally deceived B as to the nature of purpose of the relevant act
- A intentionally induced B to consent to the relevant act by impersonating a person known personally to B
R v Williams 1923 - S76 (N&P)
- deception as to the nature or purpose of the act
- A (singing teacher) deceived his student into having sex, telling her it was a procedure to improve her singing voice
- A was charged with rape
R v Dica 2004 - S76 (N&P)
A - HIV positive
- had unprotected sex with 2 women and infected both
- it was clear that neither of the women would have consented to sex if they knew about A’s status
- not guilty of rape as defendants was not deceived as to the nature of the sexual act
R v Linkar 1995 - S76 (N&P)
- deception as to the purpose of the sexual act does not include deception as to B’s purpose
- A had sex with B (sex worker)
- promised to pay her £25
- A never intended to pay
- guilty of rape on the basis that B would not have consented if she had known A had no intention to pay
R v Devonald 2008 (N&P)
- B is deceived as to A’s motives
- despite understanding the sexual context
- A posed as a young woman as the internet
- formed rapport with B
- persuaded B to masturbate in front of webcam
- A planned to use to video to humiliate B
- charged with offence under s4 SOA 2003
- s76 presumption applied
–> B was deceived as to A’s purpose in relation to the sexual act
what does ‘deception as to identity of A’ means in S76
- A intentionally deceives B to his identity
- presumption will apply where A intentionally and actively pretends to be someone who B knows personally (eg friend)
what are the problems with deception as to identity
- narrow
–> courts apply identity strictly (impersonation of known person only)
–> what about online?
–> In R v B , court held that not disclosing HIV status is not a deception as to identity - tension with s74
–> s76 creates conclusive presumptions
–> if deception is proven, no need to prove lack of consent
–> but under s74, court may consider freedom and capacity
–> therefore raises concerns about consistency
what’s next if facts of a case do not come with s76?
next stage of analysis is whether they come within s75
what are the scenarios in which a rebuttable presumption of non-consent will arise? - s75(2)
- where it was difficult for A to rebut –> therefore sex without consent
- violence
- fear of violence
- unlawful detention
- unconsciousness
- disability preventing communication
- involuntary doping
R v C : capacity - s74
- B had a history of mental health conditions
- manic episodes and delusions
- A befriended B and made her perform oral sex on him
- B claimed that she only consented out of fear for her own safety
- HOL: capacity can be undermined when B understands the nature of the act, but mental condition prevents her making a real choice
what are the test for valid decision making according to HOL- consent s74
- a person must be able to understand the info relevant to making it
- a person must be able to weigh that information in the balance to arrive at a choice
R v Lawrence - freedom s74
- A falsely assured B that he had a vasectomy
- therefore no condom was required to prevent the risk of pregnancy from unwanted sex
- B consented to sex
- A charged with rape
- B’s consent was not free and informed
