Sexual Offences

Question 1

rape authority definition

Answer 1

Sexual Offences Act 2003 — Section 1: Rape
(1) A person (A) commits an offence if—

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

Question 2

rape actus reus

Answer 2

1. Penile penetration of the vagina, anus, or mouth of another person (s.1(1)(a))
   a. must be with a penis — only a biological male
   - **inherently disputed wrt penetration(s.2)*
   b. Section 78 - R v Kaitamaki - Penetration is a continuing act from entry to withdrawal. If consent is withdrawn mid-act, failure to stop = rape
2. Lack of consent by the complainant (s.1(1)(b))
   a. “agreement by choice with freedom and capacity.” (s.74)
   b. Hierarchy:
   - s.76 – Conclusive presumptions (deception) → consent automatically negated
   - s.75 – Evidential presumptions (e.g. unconsciousness, fear, drugged) → shifts burden to D
   - s.74 – General definition applies if 76/75 don’t

Question 2

mens rea rape

Answer 2

1. Intend to penetrate (s.1(1)(a))
   
   1. Must be intentional penile penetration (not accidental).
   2. R v Gabbai → R v Kaitamaki: Even if penetration is unintentional, failure to take reasonable steps to ensure consent before continuing can still satisfy the mens rea.
2. Absence of reasonable belief of consent (is it reasonable grounds for believing?) (s.1(1)(c))
   
   • Dual test(R v B, R v Ciccarelli):
     
     • Subjective: Did D actually believe V consented?
     • Objective: Was that belief reasonable in the circumstances? (s.1(2)))
   • Key Cases:
     
     • R v Ciccarelli – No reasonable belief if D relies on vague or speculative past indications (V was asleep; no real signs of consent)
     • R v B– Delusional belief (e.g. due to schizophrenia) is not reasonable
     • s.76(automatically unreasonable) and s.75(can be unreasonable) applies to belief

Question 2

A. Freedom to Choose under objective Consent

Answer 2

Even if the complainant says “yes,” the courts will look deeper: Was that choice truly free?

• R v Ali and Ashraf: Consent obtained through grooming and emotional manipulation was found to lack freedom. The girl was technically cooperative, but the background of coercion and exploitation invalidated consent under s.74.
• R v Kirk: A homeless teenager agreed to sex in exchange for food. The court ruled this was submission, not consent. Her extreme vulnerability meant her choice wasn’t free — she had no real alternative.

R v McNally and Assange under conditional consent also

Question 3

Statutory Definition of Consent

Answer 3

🔹 1. Statutory Definition – Section 74
Sexual Offences Act 2003

“A person consents if they agree by choice and have the freedom and capacity to make that choice.” (R v Ciccarelli - belief cannot be based on previous flirtatious attempts)

The courts assess both
subjective understanding ((evidential) did the complainant genuinely choose?) and
objective circumstances (was the choice made (A.) freely and with (B.) capacity?).

Question 3

B. Capacity to Choose under objective consent

Answer 3

🟪 B. Capacity to Choose

A person who cannot understand or process what is happening cannot legally consent. This is especially tested in cases involving intoxication or mental incapacity.

i. Intoxication Cases:

• R v Bree: If V is so drunk that they lack capacity to make a choice, then there is no consent under s.74. But if they are drunk yet still understand and engage voluntarily, consent can still be valid.
  
  • The complainant’s memory was impaired, but she recalled engaging in sexual intercourse with Bree. She did not explicitly refuse consent but later claimed she had not consented. Bree contended that the complainant appeared willing and conscious throughout the encounter.
  • The Court of Appeal quashed Bree’s conviction for rape.
  • The court held that while extreme intoxication can impair capacity to consent, it does not automatically do so.
  • Each case must be assessed on its specific facts to determine whether the complainant had the capacity to consent.
  • The determination of whether a complainant had the capacity to consent is a fact-specific inquiry, and proper jury directions are essential in such cases.

> “We are all free to decide how much to drink and whether to have sex or not. However, if through drink a woman has temporarily lost her capacity to choose… she would not be consenting.

ii. Mental Impairment

• R v C: eg. down syndrome and learning difficulties. If V suffers from a condition that prevents understanding, consent is invalid.

Question 4

R v Ciccarelli

Answer 4

📚 R v Ciccarelli
Could D rebut the s.75 presumption that V did not consent and that he did not reasonably believe she consented?

🔍 Legal Context:
Section 75 Sexual Offences Act 2003 – Evidential Presumptions of Non-Consent

🧠 Facts:
D attempted to have sex with V while she was asleep after a party.
He claimed she had shown sexual interest earlier in the evening.
V later woke up to him on top of her.

⚖️ Issue:
Could D rebut the s.75 presumption that V did not consent and that he did not reasonably believe she consented?

📌 Held:
The s.75 presumption applied because V was asleep at the time of the act, and D knew this.

D’s speculative evidence about past flirtation was not sufficient to rebut the presumption.

Conviction for attempted rape upheld.

💡 Legal Principle:
To rebut the evidential presumption under s.75, D must provide actual evidence capable of raising an issue as to consent or reasonable belief in consent.

A mere speculative or fanciful possibility is not enough.

✅ Application in Exams:
Use Ciccarelli to:

1. Show how s.75 operates in sleep/unconsciousness scenarios
2. Emphasise the standard of rebuttal:
   D must produce real, credible evidence — not vague possibilities — to displace the presumption.
3. Support points on lack of reasonable belief:
   If belief is based on nothing concrete (e.g., past sexual interest, general vibe), it is not a reasonable belief.

Question 5

R v Bree

Answer 5

📚 R v Bree
Does voluntary intoxication negate a person’s capacity to consent ? Section 74 of the Sexual Offences Act 2003– Definition of Consent

• R v Bree: If V is so drunk that they lack capacity to make a choice, then there is no consent under s.74. But if they are drunk yet still understand and engage voluntarily, consent can still be valid.
  
  • The complainant’s memory was impaired, but she recalled engaging in sexual intercourse with Bree. She did not explicitly refuse consent but later claimed she had not consented. Bree contended that the complainant appeared willing and conscious throughout the encounter.
  • The Court of Appeal quashed Bree’s conviction for rape.
  • The court held that while extreme intoxication can impair capacity to consent, it does not automatically do so.
  • Each case must be assessed on its specific facts to determine whether the complainant had the capacity to consent.
  • The determination of whether a complainant had the capacity to consent is a fact-specific inquiry, and proper jury directions are essential in such cases.

“We are all free to decide how much to drink and whether to have sex or not. However, if through drink a woman has temporarily lost her capacity to choose… she would not be consenting.”

Question 6

🎓Philosophical Controversy Over Section 74

Answer 6

🎓Philosophical Controversy Over Section 74

Legal scholars have criticised s.74 for being vague and moralistic, making it difficult to apply consistently in court.

• Temkin & Ashworth (2004):

> “Ideas which raise philosophical issues of such complexity as to be ill-suited to the needs of criminal justice.”

They argue that s.74 requires juries to make judgments not just about what happened, but about whether V’s choice was morally valid, which is deeply subjective and problematic.

Question 7

s.76 SOA

Answer 7

🔹 2. Section 76 – Conclusive Presumptions of Non-Consent

Under s.76, if the prosecution can prove one of two specific scenarios, then:

• Consent is automatically negated
• D’s belief in consent is automatically deemed unreasonable
• D cannot argue mistake or reasonable belief

✅ Two Presumptions:

1. Deception as to the nature or purpose of the act
2. Impersonation of someone V personally knows

Question 8

R v Assange

Answer 8

Conditional Consent under freedom to chose
- Conditional Consent

**Assange v Swedish Prosecution Authority [2011]**

- V consented only to protected sex. The removal or non-use of a condom without her knowledge **vitiated consent under s.74**, as she **did not agree by choice with the freedom and capacity** required. The court confirmed that this **did not amount to a s.76 deception**, as it did not alter the nature or purpose of the act.
- V in *Assange* had **mental and physical capacity** to choose — she wasn’t drunk, drugged, or impaired. So it was a **freedom problem**, not a **capacity problem**.

> *“She chose to have intercourse with him on condition that he would not ejaculate inside her. He deliberately ignored that.”*
> 

 **R v McNally**

Question 9

s.76 cases SOA

Answer 9

Deception and Consent in Sexual Offences

R v Williams [1923]Deception as to natureWhat the act physically wasSinging teacher told pupil he was performing a breathing technique when in fact he was having sex with her.

R v Tabassum [2000]Deception as to purposeWhy the act was being done (e.g. medical vs sexual)D told V he was a doctor doing medical research. She consented to him touching her breasts.

R v DovanaldDeception as to purposeWhy the act was being done (e.g. sexual vs humiliation)D posed as a girl online to get a male friend to masturbate on camera, intending to humiliate him.

R v Elbekkay [1995]Impersonation under s.76Identity as someone V knowsD impersonated V’s boyfriend and had sex with her while she was half-asleep. V thought it was her partner.

Question 10

s.76 limits

Answer 10

personal known, act physically same, without freedom, aftermath (hiv, not paying)

1. not impersonating personally known, just a guy
   R v McNally [2013]Broader s.74 deception → conditional consent Gender identityD, a female presenting as male, had sex with a girl who only consented under the belief D was male.
2. deception of deal or promise
   R v Linekar [1995]Limits of s.76 → addressed under civil lawPromise to pay (collateral lie)D had sex with a prostitute and didn’t pay. Deception not about nature or purpose.
3. manipulation is 74, 76 deception of ACT only
   R v Jheeta [2007]Limits of s.76 → treated under external s.74External manipulationD sent fake texts pretending to be police to manipulate V into sex. Deception was about circumstances, not the act itself.
4. no full knowledge
   R v Dica [2004]Limits of s.76 → liability under s.20 OAPA HIV statusD didn’t disclose HIV status. Not rape, but it can be grievous bodily harm under s.20 OAPA. Consent must be informed.
5. as long as physical act of sex is same

-physical detail difference
Assange v Swedish Prosecution Authority [2011]Limits of s.76 → conditional consent under s.74Condom usageV only consented to sex with a condom. D removed the condom without telling her or never used it. Court held this changed the physical act.

-no physical detail difference
R v Lawrance [2020]Limits of s.76 → no vitiation of consent under s.74Infertility (consequences of the act)D told V he was infertile but ejaculated inside her. Courts said the lie was about consequences (pregnancy), not the nature or purpose of the act.

Judicial Note (Lawrance vs Assange):
Judicial conservatism: Courts avoid setting precedent where every lie about future consequences becomes rape.
Key distinction:
Assange = physical deception (act changed)
Lawrance = deception about a post-act result (pregnancy), not the act itself

Question 11

s.75 SOA

Answer 11

🔹 3. Section 75 – Evidential Presumptions of Non-Consent

Under s.75, the law presumes that:

• V did not consent, and
• D did not reasonably believe there was consent

BUT — these are rebuttable presumptions. D can give evidence to try to prove otherwise.

✅ The 6 Circumstances Triggering s.75:

1. Violence or fear of immediate violence to V
2. Fear of violence being used against another person
3. V is unlawfully detained
4. V is asleep or unconscious
5. V is physically disabled and unable to communicate consent
6. V was stupefied or overpowered by substances administered by D

Question 12

R v Ciccarelli s.75

Answer 12

🧠 Case Example: R v Ciccarelli [2011]

• V was asleep when D attempted to have sex with her. D claimed she had previously shown sexual interest and they had “sleep sex” before.
• Held: For s.75 to apply, D must provide real evidence, not just speculative doubt, to rebut the presumption. “Mere speculative possibility” ≠ evidence. D must show real evidence suggesting consent might have been present.
• Court held that s.75 applied and the defence failed to rebut the presumption — conviction upheld.

> “Under s.75 of the Sexual Offences Act 2003, where it is proved that the complainant was [asleep/unconscious/subject to violence/etc.] and the defendant knew it, it is presumed that the complainant did not consent and that the defendant did not reasonably believe in consent, unless rebutted.”

> “In R v Ciccarelli [2009], the Court held that mere speculative or fanciful suggestions of consent are not sufficient to rebut the presumption. D must produce evidence capable of raising an issue as to consent or belief in consent.”

> “Here, D relies only on the suggestion that V ‘might’ have consented earlier in the night. As in Ciccarelli, this is speculative and not capable of rebutting the s.75 presumption. Therefore, the presumption stands.”