Sexual Offences (New)

Question 0

Park

Answer 0

Any degree of penetration is sufficient

Question 1

Ismail

Answer 1

No serious distinction between oral, anal, vaginal penetrations

Question 2

Kaitamaki

Answer 2

If at any point during the act B NO LONGER consents, then any continuation will qualify for the offence

Question 3

DPP v K and C

Answer 3

Only a man can be convicted as P but a woman can be convicted as SP

Question 4

Heard

Answer 4

s3(1) sexual assault is basic intent

Question 5

W, Ralston, Turner, Bounekhla

Answer 5

s79(8) ‘touching’ for sexual assault has seen: kissing face, touching V’s breasts, kissing private parts and ejaculating onto V’s clothes to be sexual assault

Question 6

H

Court

Answer 6

Some touching is inherently decent, e.g. touching the hair – NB fetishisms will probably come under s78

Touching of the clothes is sufficient

Question 7

Bennion (person)

Answer 7

Difficulty with the definition of ‘sexual’ as the word is used in the definition

Question 8

Aitken

Answer 8

Mistaken belief is no longer sufficient, it now must be reasonable to have believed as such – must look at circumstances, did D ask V?

Question 9

R v B

Answer 9

D’s delusional belief that V consents is insufficient

If non-HIV was a condition of consent then not disclaiming it COULD vitiate consent - affirmed in McNally

Question 10

Marston

Doyle .

Answer 10

Freedom to consent: Mere submission is not consent

NB dichotomy between reluctant (but valid) consent and mere submission

Question 11

McNally

Answer 11

Deception can vitiate V’s consent if it removes their freedom of choice, wealth, etc. is insufficient but something like gender will

Question 12

Assange v Sweden

R(F) v DPP

Answer 12

Conditional consent e.g. not wearing a condom when this was part of the consent NB also ejaculation intentional/accidental - the former vitiating consent and the latter not

Question 13

R v C

Answer 13

V must have sufficient understanding of the sexual nature of the act to consent

Question 14

Bree
AG Reference (No.31 of 2006)

Answer 14

Drunken consent is consent providing V had the capacity, later regret does not vitiate consent – Judge LJ

NB if D spike’s V’s drink in order to get her into that condition then he will commit an offence under s61 -

Question 15

Ciccarelli

Answer 15

Rebuttable presumption - unless evidence to the contrary is adduced then it will be assumed that V did not consent - evidence must be beyond the ‘fanciful and speculative’

Question 16

Williams
Elbekkay
Court (swab)
Bingham (2013)

Answer 16

Irrebuttable once satisfied - no consent - 1. Deception as to nature i.e. an essential element of the act 2. impersonating someone known personally to V or using swab for sexual gratification

Very high threshold in s76 per Jheeta - if not then s74

Question 17

Tabassum

Answer 17

Deception as to qualification - here he said he was a doctor to examine breasts - did not matter that it was not sexually motivated

Question 18

Jheeta, Linnekar

Answer 18

s76 will only apply when the V is deceived as to the essential elements of the purpose, if the V knows that the act is for sexual gratification, then s76 cannot apply - NB the old offence of procuring sexual activity by false pretences doe not apply - s76 is therefore a high threshold – coercive pressure may vitiate consent under s74, however - choice?

Question 19

Dica

Answer 19

Consent to sex does not presuppose consent to sex with someone who is HIV positive - if it is a condition then Assange, but if not, then the D may be convicted of GBH but not rape