Sexual Offences - Cases Flashcards
(32 cards)
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.
(3) Sections 75 and 76 apply to an offence under this section.
(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.
Sexual Offences Act 2003 - section 2
- Assault by penetration
(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else,
(b) the penetration is sexual,
(c) B does not consent to the penetration, and
(d) 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.
(3) Sections 75 and 76 apply to an offence under this section.
(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.
Sexual Offences Act 2003 - Section 3
- Sexual assault
(1) A person (A) commits an offence if—
(a) he intentionally touches another person (B),
(b) the touching is sexual,
(c) B does not consent to the touching, and
(d) 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.
(3) Sections 75 and 76 apply to an offence under this section.
(4) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years.
Sexual Offences Act 2003 - Section 4
- Causing a person to engage in sexual activity without consent.
(1) A person (A) commits an offence if—
(a) he intentionally causes another person (B) to engage in an activity,
(b) the activity is sexual,
(c) B does not consent to engaging in the activity, and
(d) 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.
(3) Sections 75 and 76 apply to an offence under this section.
(4) A person guilty of an offence under this section, if the activity caused involved—
(a) penetration of B’s anus or vagina,
(b) penetration of B’s mouth with a person’s penis,
(c) penetration of a person’s anus or vagina with a part of B’s body or by B with anything else, or
(d) penetration of a person’s mouth with B’s penis,
is liable, on conviction on indictment, to imprisonment for life.
(5) Unless subsection (4) applies, a person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years.
The definition of ‘sexual’ - SOA 2003
> Section 78:
“Sexual”
-For the purposes of this part, penetration, touching or any other activity is sexual if a reasonable person would consider that—
(a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.
The definition of ‘sexual’ - case law
> R v H [2005] EWCA Crim 732.
Clarified that the meaning of ‘sexual’ for the purposes of s78 Sexual Offences Act 2003 is subject to a two-stage test.
D told V ‘do you fancy a shag’ then grabbed her trousers in an attempt to pull her close, V managed to get away.
D was charged with sexual assault.
D contended that touching of pants did not amount to ‘touching’ under s3 Sexual Offences Act (SOA) 2003 and it was not sexual in nature under s78 SOA 2003.
CA dismissed appeal as although the judge erred in his direction by not adopting a two-stage approach in his direction, the conviction is safe.
Lord Woolf CJ:
-Where a person is wearing clothing, that touching of the clothing will constitute touching for the purposes of s3 SOA 2003.
-The jury should have to consider whether nature was sexual under two-stage test required by s78(b) SOA 2003:
1. Was the touching sexual by its nature? If yes move on to question 2 (Objective test)
2. Was the touching in fact sexual based on its purpose or the circumstances? if yes, it is sexual, if no it is not sexual (Subjective test).
Consent in sexual offences - general
- AR - was V in fact consenting?
2. MR - D may argue that they believed V was consenting.
MR of consent - case & statute
> For the old law that 2003 SOA was designed to replace, consider Morgan [1976] AC 182 and contrast to s 1(1)(c) and s 1(2) of the 2003 Act.
> Section 75 and 76 of the SOA 2003.
> R v B [2013] EWCA Crim 3
MR - defendant’s belief in consent - old law - Morgan
> DPP v Morgan [1976] AC 182.
The defendant invited his friends over to have sexual intercourse with his wife. He told them that any signs of struggle were not to be seen as a lack of consent and that she enjoyed it.
The men were convicted of rape, while Morgan was convicted of aiding and abetting his wife. The men had argued that they had the honest belief that the complainant had consented to sexual intercourse.
The issue in this case was concerning whether there could be a conviction for rape if the defendant honestly believed that the woman consented to sexual intercourse, if his belief was not based on reasonable grounds.
It was held that as long as a belief was genuine and honest pertaining to consent, it did not have to be a reasonable belief for a defence to rape.
The focus was on the MR of rape; there had to be an intention to commit the crime, as well as a lack of consent.
There was a requirement to know the woman had not consented or reckless to whether she did.
Despite this decision, the conviction was upheld, as no reasonable jury would have found them not guilty, even if directed correctly by the judge.
The complainant had clearly communicated her lack of consent for sexual activity in this case.
MR - defendant’s belief in consent - R v B
> R v B [2013] EWCA Crim 3.
The test for reasonable belief in consent under the SOA is objective and mental illness of the defendant should not be taken into account.
D was convicted of raping his partner.
D was a paranoid schizophrenic and did so as he believed he had ‘sexual healing power’.
The judge directed the jury to ignore D’s mental illness in determining whether he had reasonable belief in his partner’s consent for the purposes of s1(1) Sexual Offences Act 2003.
D appealed on the ground that the judge misdirected the jury.
CA dismissed appeal.
Hughes LJ:
-On the facts medical evidence showed that D’s condition did not impair his ability to understand whether or not his partner consented.
-But even if it did, such a delusional belief cannot in law render reasonable a belief that his partner was consenting when in fact she was not.
-Unless the state of mind amounts to insanity in law, a belief in consent arising from mental illness must be judged by objective standards and not by taking into account the mental illness.
-However, there might be cases where the defendant’s personality or abilities are relevant, such as if they impede his ability to recognise social cues.
Hughes LJ seemed to acknowledge that it would be difficult to draw the line between what is a relevant lack of ability and an irrelevant mental illness – one such case would be where the inability to recognise social cues results from low intelligence and he settled on saying that such a case will be decided on the specific facts.
Consent - SOA 2003 - AR & MR
> Sections 74 and 75 and 76.
SOA 2003 - Section 74
> “Consent”
-For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.
SOA 2003 - Section 75
> Evidential presumptions about consent:
(1) If in proceedings for an offence to which this section applies it is proved—
(a) that the defendant did the relevant act,
(b) that any of the circumstances specified in subsection (2) existed, and
(c) that the defendant knew that those circumstances existed, the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
(2) The circumstances are that—
(a) any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him;
(b) any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person;
(c) the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act;
(d) the complainant was asleep or otherwise unconscious at the time of the relevant act;
(e) because of the complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented;
(f) any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.
(3) In subsection (2)(a) and (b), the reference to the time immediately before the relevant act began is, in the case of an act which is one of a continuous series of sexual activities, a reference to the time immediately before the first sexual activity began.
SOA 2003 - Section 76
> Conclusive presumptions about consent
(1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed—
(a) that the complainant did not consent to the relevant act, and
(b) that the defendant did not believe that the complainant consented to the relevant act.
(2) The circumstances are that—
(a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
(b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.
AR Consent - old law case
Olugboja
AR - Consent - old law case - olugboja
> R v Olugboja [1982] QB 320, [1981] 3 W.L.R. 585.
Submission (i.e. lack of physical resistance) to sexual intercourse does not equate consent.
V’s friend was raped by D’s friend.
D asked V to take off her trousers.
D made no direct threat and V neither screamed nor struggled.
The judge directed the jury to consider whether V had consented despite the lack of physical resistance.
D was convicted for rape and appealed against the direction.
CA dismissed appeal. There was no consent.
Dunn LJ:
-Lack of consent is not only limited to situations where there is force, fear or fraud.
-“Every consent involves a submission, but it by no means follows that a mere submission involves consent.”
-In case where threats do not involve violence or the fear of it, the jury should concentrate on state of mind immediately before the act, having regard to all the circumstances, in particular the events leading up to the act and her reactions which show impact on her mind.
AR - Consent - Bree
> R v Bree [2007] EWCA Crim 804.
Intoxication does not automatically vitiate consent under s74 Sexual Offences Act 2003, whether it did so is a question of fact on the state of mind of the complainant.
V was engaged in sex with D while highly intoxicated from drink.
D argued though V was drunk, she was lucid enough to consent.
D was convicted of rape.
D appealed on the basis that judge had made no reference on the ability to consent while intoxicated.
CA allowed appeal.
Where a person loses their capacity to consent due to intoxication, they indeed cannot consent.
However, it is possible that a person may be heavily intoxicated, having voluntarily consumed a large quantity of alcohol, and still be capable of deciding to have intercourse.
Further, the specific facts of each case must be examined in deciding whether consent is deemed to have been given, alongside the mental states of the defendant and complainant.
Simply being intoxicated does not remove one’s ability to consent, and equally, simply to be conscious does not mean one has the capacity to consent.
R v Bree has been followed in subsequent case law and remains valid.
Further, it has had impact on the Code for Crown Prosecutors, which was subsequently updated to emphasise the Appeal Court’s findings.
The Code now reminds prosecutors to pay particular attention to all the relevant facts in a specific case in assessing a person’s capacity to consent in a rape case involving intoxication due to alcohol or drugs.
The benefits of this approach have been stressed by other commentators, such as the highly-regarded Rook & Ward who note that rape cases involving heavy intoxication by either one or both parties tend to be “so fact-specific, there are dangers to slavishly following a prescriptive specimen direction.
However, others e.g. Wallerstein, Simpson & Elvin, argue that the current definition and construction of consent under the Sexual Offences Act 2003 is somewhat weak and is failing to provide adequate protection and justice to the victims of sexual offences.
AR - Consent - Ciccarelli
> R v Ciccarelli [2011] EWCA Crim 2665.
Under s75 Sexual Offences Act 2003, evidence of reasonable belief in consent must be realistic before the issue is left to the jury to decide.
D and his girlfriend brought back a friend (V) to their apartment after party.
D sexually assaulted V while she was asleep.
D gave evidence that he did so believing that V would consent based on a single advance V made towards him earlier.
The trial judge held that the evidential presumption in s75 SOA 2003 applied and D’s evidence was insufficient raise an issue as to whether he reasonably believed that V had consented.
D appealed on the basis that his evidence was sufficient to raise an issue that was for the jury to decide.
CA dismissed appeal.
Lord Judge CJ:
-“before the question of the appellant’s reasonable belief in the complainant’s consent could be left to the jury, some evidence beyond the fanciful or speculative had to be adduced to support the reasonableness of his belief”.
-D and V were effectively strangers, D’s belief is effectively based on a single advance, the judge was justified in concluding that there was insufficient evidence to raise an issue (i.e. the evidence was incapable of supporting reasonable belief in V’s consent).
AR - Consent - Ali
> R v Ali [2015] EWCA Crim 1279.
Where a vulnerable and immature individual is groomed, there may be no true consent to sexual activity, whether there is consent is for the jury to decide.
Ds were charged with rape for grooming young girls from troubled backgrounds for sexual purposes.
The prosecution argued that after grooming, the girls became sexually compliant and any consent was not genuine.
Ds appealed on the basis that the jury was wrongly directed to consider whether the girls had truly consented.
CA dismissed appeal - Ds were rightly convicted.
Fulford LJ:
-When vulnerable people are groomed for sexual exploitation, compliance can mask the lack of true consent on the part of the victim.
-Although grooming does not necessarily vitiate consent, it starkly raises the possibility that a vulnerable or immature individual was led to acquiesce rather than consent.
-Grooming has the tendency to limit or subvert the free will of the victim by creating an environment of dependency.
AR - Consent - new cases list
> Bree
Ciccarelli
Ali
The problem of mistaken consent - old law cases
> Flattery
Williams
Linekar
The problem of mistaken consent - new cases
>Jheeta >Assange >Bingham >McNally >Monica >Lawrence
The problem of mistaken consent - old law cases - Flattery
> R v Flattery (1877) 2 QBD 410.
At common law, mistake as to the nature a sexual act vitiates consent.
D pretended to be a doctor at a market stall in York
V went to him, with her mother, as she suffered from fits.
D had sex with V, under the guise of carrying out an operation.
D was guilty of rape as there had been no consent.
Mellor J:
-“It is said that submission is equivalent to consent, and that here there was submission: but submission to what? Not to carnal connection”.
The problem of mistaken consent - old law cases - Williams
> R v Williams [1923] 1 KB 340.
D gave singing lessons and had sex with V under pretence that it would improve her breathing.
D was convicted of rape.
V did not consent to the intercourse since it was obtained by false pretences, Flattery was followed.
