Sexual offences Flashcards
Sexual Offences Act 2003 (8 cards)
Basic meaning of consent (section 74)
R v Malone: V must actively agree to the penetration (positive consent needed); if V is so drunk she’s unaware D is having sex with her the AR is made out
R v Bree: “where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape”; “the question is not whether the alcohol made either or both less inhibited than they would have been if sober”
Assange v Swedish Prosecution Authority: if a woman agreed to sex if the man wore a condom, and the man deliberately penetrated her without one, the jury can decide that it was done without V’s consent
R (F) v DPP: breaking agreement to withdraw before ejaculation can constitute rape
R v Lawrence: V was explicit she would not have sex with D if he did not have a vasectomy as she did not want to get pregnant, D lied to her- distinguished this case, taking the view that the deception was not related to the physical act but rather the consequences of it and was therefore not sufficient to vitiate consent
R v McNally: D pretending to be a boy orally and digitally penetrated V; “the sexual nature of the act is, on any common sense view, different”; “deception as to gender can vitiate consent”
R (on the application of Monica) v DPP: lying about D’s true identity did not vitiate consent
Evidential presumptions (section 75)
R v Ciccarelli: D has to introduce evidence that he reasonably believed V consented- not enough for D to say he just believed
Conclusive presumptions- nature or purpose of the act (section 76(2)(a)
R v Williams: singing teacher persuaded his pupil (16) to agree to let him do something to improve her singing, unaware that it was going to be sex- the act she consented to was different in nature from D’s act
R v Jheeta: D sent anonymous threatening messages + messages purporting to be from the police telling she needed to keep having sex with D; “She was not deceived as to the nature or purpose of intercourse, but deceived as to the situation in which she found herself”; no conclusive presumptions but still found in some cases not to be consenting under the ordinary meaning
R v Devonald: D persuaded V to masturbate on webcam, planning to put the film on the internet, while pretending to be a 20-year-old girl; conditions for causing sexual activity without consent were met; “purpose… encompasses rather more than the specific purpose of sexual gratification”; V believed the purpose was for the sexual gratification of a woman, rather than revenge porn
R v Bingham: D contacted V on an online platform pretending to be other men and blackmailed her with explicit photos into performing sexual acts; statutory provision which removes D’s only line of defence to a serious criminal charge ought to be “strictly construed”; “If there is any conflict between the decisions in Jheeta and Devonald, we would unhesitatingly follow Jheeta
Conclusive presumptions- impersonation (section 76(2)(b)
Herring: the subsection seems to apply even where V is not taken in by the impersonation
R v Elbekkay: D entered V’s bedroom, she assumed it was her boyfriend and consented to sex, D did not correct the mistake; D had not impersonated her boyfriend, but was still guilty under the general meaning of consent because V had consented to sex with her partner, not to sex with V
D’s reasonable belief that D consents
If D knows any of the circumstances in section 75(2) were present, he’s taken not to reasonably believe V consents
R v B: strong (albeit obiter) support that ‘reasonable’ will be judged by reference to an objective third party
- “The belief must not only be genuinely held; it must also be reasonable in all the circumstances”
Sexual assault (section 3)
Attorney-General’s Reference (no. 1 of 2020): “it is not necessary for the prosecution to prove, as an element of the offence of sexual assault… that the offender additionally intended his touching of that person to be sexual”
Causing sexual activity without consent (section 4)
R v Abdullah: D caused a child to watch a pornographic film; guilty even though he hadn’t touched the child and was not seeking to obtain sexual gratification by watching the film (he was hoping the child would engage in sexual activity with him as a result of the film)
Consent and sexual activity- is it objective or subjective?
Brett: consent is the outward manifestation by V in words or acts which indicate permission; “To consent is to act in a way that has conventional significance in communication permission”
Herring: rather than asking whether the mistake is sufficiently serious to negate consent, the courts should ask a simpler question: “is what the defendant did the act which the victim consented to?”
