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Flashcards in SO Deck (76):
1

Fair Labelling

1. Description
2. Sentencing
3. Differentiation
4. Criminal Record
5. Communication to public OR people in the criminal justice system
6. Fairness to the offender OR victims

2

What factors should influence?

Public opinion
The Scope and whether it is too general or narrow
Social Context
SLC: the protective principle
Pragmatism

3

Giving Legal effect

underlying social, moral principle - not really about enforcement of morals, BUT rather about how social views influence the legal development

4

Principles influencing the law of SO

Clarity of the law: 1) defining 2)comprehensive scope: NO open-ended sexual offences: shameless indecency
Respect for Sexual Autonomy: 1) free choice, 2) should not prohibit sex itself 3) consent
Protective Principle: children, mental disorder, in position of trust [even people capable of consenting]: the concept of vulnerability
Sexual Orientation or gender
EConHR: the effect of art 3 (degrading), art 8 (respec private life), Sutherland - homo and hetero treatment should be similar, Propoportionality.

5

s1 SOSA 2009

AR: penile penetration by A to vagina, anus or mouth of B without B's consent or reasonable belief.
Penetartion if the continuing act...
MR: penetration either intending to do so or reckless as to whether there is penetration
SLC: influence by English law widened to include anus and mouth
- maximum sentence = life

6

Lord Advocate's Reference (No 1 of 2001)

Prior to the decision of the High Court of Justiciary in Lord Advocate's Reference (No 1 of 2001)1 a
defining element of rape was that sexual intercourse took place against the will of the victim. To
prove that intercourse was against the will of the victim it was necessary for the prosecution to
show that the accused used, or threatened to use, force. This understanding of the law changed
when in Lord Advocate's Reference (No 1 of 2001) the Court held that rape is defined as a man
having sexual intercourse with a woman without her consent, regardless of whether or not force
was used. However, 'consent' is not defined and juries are expected to apply what they consider
to be the ordinary meaning of that word.

7

SLC changes

(a) where at the time of the act the person was subject to force or violence or the threat of force or violence;
(c) where the person was unconscious or asleep;
(d) where the person had taken or been given alcohol or other substances and as a result
lacked the capacity to consent;
(e) where the person was deceived or mistaken about the nature of the activity;
(f) where the person was deceived into thinking that the other person was someone known to him or her:
(g) where the person was unlawfully detained;
(h) where expression of consent was made by someone other than the person.

8

SLC: Protective Principle

The protective principle adds to the consent principle: it applies to people who cannot consent to
sexual activity (eg young children) and it also applies to people who can give consent but who may
be vulnerable and open to exploitation. It is argued that protective offences need not be
inconsistent with a general consent model. These offences spell out in detail the application of the
consent model to vulnerable people. They also give expression to the principle that certain people
should be specifically protected by the criminal law: sexual activity with young children, or with
persons with a mental disorder, is wrong and the law should say so explicitly.

9

Common Law Rape

-Hume 18th
CL(C)(S)1995
-Martial rape ourlawed in Stallard
-Charles Sweenie - force - drugs threats disabled
-sleeping woman - clandestine injury
-Joned and Christie - implied that only to non-transman and women

10

Issues with the Act

-no statutory or judicial guidance on what ammounts to consent. Lord Justic-Clerk Ross in Marr v HMA 'common straight forward definition of censent, normal meaning'
-fraud - narrowly defined as to the nature and purpose
-Williams -
-singing teacher had sex with pupil by telling her it was an exercise to improve her breathing
- deception as to nature of act
- if he told her he was engaging in sexual intercourse with her but for purpose of improving her singing, and she then consented, this would be deception as to purpose

11

MR of Rape

-under developed Ferguson and Raitt
- The Troubling concept of mistaken belief, as in other Areas of Scots Law - objective test of reasonableness. Under the common law of rape, it is subjective
DPP v Morgan Only expression of consent is through a third party. An honest belief in the consent of the victim if believed by the jury will be sufficient to acquit due to lack of mens rea to rape. However, under s16 2009 Act requirement that A acted with a reasonable belief that B consented. Must have taken steps to ascertain consent.

- Morgan changed by S.1(2) to be an OBJECTIVE test
- whether the belief is reasonably determined by having regard to ALL circumstances, including any steps D has taken to ascertain consent

12

Penetration by what

- statistics
-shiftinf it away would distract from the motivations and point
-fundamentally more damaging, traumatizing and violating.
-symbolism
-gendered assumptions and victimhood
-progressive?
-contrary to humna right principles

13

Rape by an object

-grouped with other sexual assaults vs rape
-middle-way -> SLC wanted to 2006, but in final report 2007 - subsumed with sexual assault. Eventhough they considered penetrative assault v non-penetartive assault

s2 of SOSA 2009 ->AR of sexual assault by penetration. Non-penile penetration by A of the vagina, anus or mouth of B without B's consent.
max senetnce - life. Nit sure whether they Scottish Courts will take more linient appriach.

14

Radical on the issue

-Rape Crisis Scotland (RCS)

Scottihs Women's Aids (SWA) - equal in severty
Victim Support Scotland (VSS) - similar psychological impact

Garvock - Woman comes to be examined on the basis that the accused had penetrated her, but she was unsure as to what she had been penetrated by. Accused convicted of rape. Appealed on the basis of no evidence of rape - rape quashed and replaced with assault. This demonstrates a loophole prior to the Act.

the case missed the focus of the issue

15

Symbolic penis

Gardner and Shute - invasion of momment of intimacy and heavily highlighter the heterosexuality - the act we least desire in the moment of sex
-The rep of Equality Network suggested that penis is sex organ, therefore inherently worst
-Catharine MacKinnon - penile invasion of the vagina may be less pivotal to women's sexuality, pleasure or violation, than it is to male sexuality

16

Women who have sex with other women

LGBT Domestic Abuse and the Equality Network - supported separate offence - maybe not through labelling but punishment
to deal with this area of law with legilsation would petrify and lgitimate inequality itself
Lesbains don't have the same protection is homosexual

17

Consent

Section 12
Meaning of consent - "free agreement"

Section 13
Circumstances in which conduct takes place without free agreement

Section 13(2)(a)
When B is under the influence of alcohol or any other substance - no free agreement

Section 13(2)(b)
When B is threatened with violence or actual violence used against B or any other person- no free agreement

Section 13(2)(c)
Where B submits to the conduct because B is unlawfully detained by A - no free agreement.

Section 13(2)(d)
Where B agrees or submits to the conduct because B is mistaken, as a result of deception by A, as to the nature or purpose of the conduct - no free agreement.

Section 13(2)(e)
Where B submits to the conduct because A induces B to agree or submit to the conduct by impersonating a person known personally to B

Section 13(2)(f)
Where the only expression or indication of agreement to the conduct is from a person other than B.

- the importance of saying "knowledge", voluntarily -> the juries and also the police need more guidance on terms

-common sense definition of consent

-define rape without consent through the wrong in each instance - Tadros - catch-all provision for those cases that don't fit the list

18

Sleep Sex?

s14(2) of the Act - Capacity when asleep or unconscious.
Original Bill stated "in prior."
RCS - stated that what about the ability to withdraw
LGBT Domestic Abuse - prior consent does not sit alongside free agreement."
Chalmers - it is over-inclusive, as what about touching and even kissing unlawful. The focus should be on the prior consent rather than the lack of consent

19

MR: Recklessness, mistakes and reasonable steps

s16 - requirement that A acted with reasonable belief that B consented. Must have taken steps to ascertain consent.
SOA 2003 - the problematic use of 'in all the circumstances' - Finch and Munro - subj que
-Stewart - Australian study - excuse honest mistakes
-s16 - objectifies the concept - age/mental capacity. BUt not pure obj, but rather mixed test
Fergus and Raitt - scared that the test would turn into too subj concept, taking into account wayy too much
Lacey - we should embrace the humanity of both "the accused" and the "victims".

20

Sharon Cowan

RCS - we shoudl change the social ways and attitutude towards rape rather than using law reforms

21

s2-9 of SOSA 2009

S.2 Sexual Offences Act 2003 - Assault by Penetration
- intentional penetration of vagina, anus or mouth without consent or a reasonable belief in consent
- max sentence = life
- penetration must be sexual, so doctor performing medical treatments wouldn't count

S.3 Sexual Offences Act 2003 - Sexual Assault
- intentional sexual touching without consent or a reasonable belief in consent
- max sentence = 6 months/10 years
- if D forced V to undress but did not touch them, no offence under this section
- touching must be sexual - decided objectively

S.4 Sexual Offences Act 2003 - Causing a Person to Engage in Sexual Activity Without Consent
- intentionally causing someone to engage in sexual activity without consent or a reasonable belief in consent
- max sentence = life for penetration, or 6 months/10 years

s5 2009 Act
Causing person to be present during sexual activity

s6 2009 Act
Causing person to look at sexual image (either sexual activity or genitals). Does not apply to breasts.

s7 2009 Act
Making indecent communications

22

SOA 2003 s2-4


S.2 Sexual Offences Act 2003 - Assault by Penetration
- intentional penetration of vagina, anus or mouth without consent or a reasonable belief in consent
- max sentence = life
- penetration must be sexual, so doctor performing medical treatments wouldn't count

23

Indecent Assault

-aggravated by indecency in the manner of its commission
-the importance of definition: very narrow
the concerns:
-the law did not give direct recongition and specific wrongfulness of SA
-the divisio of offences into rape abd indecent assault failed to reflect the different types infringment of a victim's sexual autonomy

24

Should there be a separate category of SA?

NO - those are violence, but different type of violences in the context
- could there be just a law of assault which would be aggravated by the circumstances
However,
-maybe violence was not present in that particular case
-SA should not be aubsummed within the general law of assault but should form a separate category of offence. Violation of sexual autonomy is a specific form of wrongdoing suffered by the victim

25

Undifferenetiated sexual assaults?

fails to mark out the range of wring which different types of sexual assault can involve

26

Distinguish between different characteristics

-penetrative and non-penetrative sexual assualt
-by penis or without
-should we use "rape"

27

Stolen

non-penile penetration to mouth - the implied hierarchy, different panlty available.

28

Meaning of Penetartion

an overlap of SA by penetration and Rape: why? the SA charge could not lead to a conviction where evidence emerged that the accused had penetrated the complainer with his penis

29

Coercing Sexual Conduct

useful for "female Rapists cases"
s4 2009 Act on coercion
A causing B to participate in sexual conduct

30

Coercion sections

s4 2009 Act on coercion
A causing B to participate in sexual conduct

ss5-7 victim is passive
Idea that A's purpose is own sexual gratification; or causing B humiliation or distress and alarm. Forcing B into watching/hearing sexual activity. Whether this was achieved is irrelevant.

s5 2009 Act
Causing person to be present during sexual activity

s6 2009 Act
Causing person to look at sexual image (either sexual activity or genitals). Does not apply to breasts.

s7 2009 Act
Making indecent communications

31

Temkin -

Radical Rape Reforms in 70s and 80s - closely connected with the feminist movement:
-new emphasise, direct problem of processing rape, facilate prosecution
-Italy 1979 - the Bill altering the definition of rape, crime against person - get rid of the distinction between vaginal and other parts of body intercourse. Prohibit cross-examination of victim
-Michigan 1973 - the little protection for the victim
-Australia 1981 - encourage the report, victinization
-Canada - women pressuring groups.

32

Similar Features in Radical reforms

1. Gradation Scheme
2. Attempts to deal with the problem of consent
3. Does not use term rape
4. Removes the exemption from liability of certain males
5. Alters the rules of evidence in sexual assault cases

33

Gradation Scheme

rape abolished and redistributed conduct
-coherent and organised
-improve reporting, prosecution and conviction rates
-plea-braganning
-more guidance to judges, as the old law would give far more discretion to juries
-gradation rests on premise that rape encompasses a range of behaviour which is not uniform

34

In the world:


• New South Wales
o Protect the victims from further victimization under legal process and encourage rape victims to report offences; facilitate the administration of justice
o Serve an educative function in further changing community attiudes to sexual assault and confront and change cultural norms
o Emphasise on the violence factors in the sexual act rather than upon the sexual elements
o Penetration by whatever was more traumatic; too narrow definition of category 1 and 2 rape


• Canada
o Women’s pressure groups
o Desexualize the rape and focus on violence
o Simplest gradation scheme – 3 ladders
♣ Draws no distinction between penetration and other sexual acts
♣ To focus on penetration would to continue the emphasise the sexual
♣ Why not subsumed with other law against the violence?
o Rape has been downgraded as a crime where the specified aggravated factors did not exist


• Michigan
o Women’s Task Force on Rape was set up o 1973
♣ Introduction of radical and influential legislation 1974
♣ The old law provided little protection to the victims and hinder effective prosecution
o The D would plead guilty for lesser offences such as assault and etc – prioir to the reforms

35

Whether what means sexual?

- obj
-through the eye of perpetartor
-through the eye of the victim
-mixed?

36

s12

meaing of consent - "free agreement"

37

s13

Circumstances in which conduct takes place without free agreement

Section 13(2)(a)
When B is under the influence of alcohol or any other substance - no free agreement

Section 13(2)(b)
When B is threatened with violence or actual violence used against B or any other person- no free agreement

Section 13(2)(c)
Where B submits to the conduct because B is unlawfully detained by A - no free agreement.

Section 13(2)(d)
Where B agrees or submits to the conduct because B is mistaken, as a result of deception by A, as to the nature or purpose of the conduct - no free agreement.

Section 13(2)(e)
Where B submits to the conduct because A induces B to agree or submit to the conduct by impersonating a person known personally to B

Section 13(2)(f)
Where the only expression or indication of agreement to the conduct is from a person other than B.

Circumstances in which conduct takes place without free agreement

Section 13(2)(a)
When B is under the influence of alcohol or any other substance - no free agreement

Section 13(2)(b)
When B is threatened with violence or actual violence used against B or any other person- no free agreement

Section 13(2)(c)
Where B submits to the conduct because B is unlawfully detained by A - no free agreement.

Section 13(2)(d)
Where B agrees or submits to the conduct because B is mistaken, as a result of deception by A, as to the nature or purpose of the conduct - no free agreement.

Section 13(2)(e)
Where B submits to the conduct because A induces B to agree or submit to the conduct by impersonating a person known personally to B

Section 13(2)(f)
Where the only expression or indication of agreement to the conduct is from a person other than B.

38

s14

Capacity when asleep or unconscious. 14(2) - no

39

s15

Scope and withdrawl. 15(3) - consent can be withdrawn at any time. 15(4) if conduct continues, it does so without consent.

40

s16

16 2009 Act requirement that A acted with reasonable belief that B consented. Must have taken steps to ascertain consent.

41

s74 of 2003

-'...a person consents if he agrees by choice, and has the freedom and capacity to make that choice'

42

s75 of 2003 created an evidential presumption...

circumstances in which we assume there wasn't consent...
(a) Any person, during/immediately before, using violence against C or causing C to fear immediate violence
(b) Any person was, during/immediately before, causing C to fear violence or imminent violence against another person
(c) C was, and D not, unlawfully detained
(d) C asleep or otherwise unconscious
(e) Because of C's physical disability, C wouldn't have been able to communicate consent
(a) Person had administered or caused to be taken by C, without C's consent, intoxicating substance

43

s76

S.76 - Conclusive Presumptions About Consent
1. if D did relevant act and any circumstances in subsection (2) existed, conclusively presumed...
(a) C did not consent; AND
(b) D did not believe that C consented
2. the circumstances are...
(a) D intentionally deceived C as to the nature or purpose
(b) D intentionally induced C to consent by impersonating a person known personally to C
- presumptions cannot be rebutted
- when presumption applied both mens rea and actus reus of rape are proved

S.76 - Must be a Deception
- if V mistaken as to nature/purpose, but not because of deception of D, presumption does not apply
- literal reading does not require the deception to have led to the consent

S.76 - Deception Must be Intentional
- statutory presumption of no consent only applied if D's deception was intentional

S.76 - Deception as to the Nature and Purpose of the Act
- If V mistaken as to nature of act then no consent
> WILLIAMS
- interpretation of phrase 'nature and purpose' has proved problematic
> JHEETA
> DEVONALD
> BINGHAM
> FLATTERY
> TABASSUM
> LINEKAR
- includes impersonation of partner (not just husband ) > ELBEKKAY
meaning of 'nature and purpose'...
• Deception as to a 'peripheral matter' not deception e.g. someone claims they're a doctor but they're not
• ASSANGE v SWEDISH PROSECUTION AUTHORITY: if man promised to wear condom, but didn't, this wouldn't be rape (controversial)
• R v EB: D who did not disclose he was HIV+ held not to have deceived as to the nature and purpose of act

44

MR for rape and the view that should be taken:

Subj
- the accused genuienly believed that the victim was consenting, even if the reasns for his belife were not reasonable -> when geniuen mistake, fairness, ecternal criterias like cultural background.
-undermines SA
-general law of error in Criminal law

Obj
-An accused has mens rea where he was reckless as to whether the victim consented, and recklessness is understood in an objective sense.
-honest belief as to consent are objectionable or bizarre.
- standard of the reasonable person in the criminal law.

mixed test, that is it combined aspects of the other two tests.
The example of the test used in English law. S1 of the SOA 2003 provides for the mental element of the offence first by requiring that the accused has intentionally penetrated the victim and that he did not reasonably believe that the victim was consenting.
It further provides that whether "a belief is reasonable is to be determined having regard to all the circumstances, including any steps [the accused] has taken to ascertain whether [the victim] consents."


Why mixed test, but not objective, consider that a test which assesses the accused's belief solely in terms of what a reasonable person would have believed or whether there were reasonable grounds for a belief moves attention too far from the actual accused.

"having regard to all circumstances" In other words, the test becomes: given the accused's attributes, including his belief systems, was his belief as to consent reasonable?
But this approach does not significantly differ from the subjective test of 'honest' belief. We therefore favour omitting from the proposed definition of mens rea any reference to 'all the circumstances'. Instead the provision should state that in assessing reasonableness of a belief as to consent regard is to be had of the steps, if any, taken by the accused in finding out whether the other party consented.
This test is objective in nature in insisting that a belief must be reasonable but it is also mixed in the sense that it directs attention to the steps which the actual accused took, or failed to take, to ascertain whether there was consent.

45

R v Bree

he defendant, Bree (B), visited his brother at University and went for an evening out with him and others, including the complainant (C). Both B and C consumed considerable quantities of alcohol, before returning to B's brother's home. Whilst C's memory from this point is poor, she recalls vomiting and having B and his brother help wash the vomit from her hair. Her next memory is of her and B having sexual intercourse. C contended that, although she had not specifically said 'no' to intercourse, she had not consented. B contended that he had reasonably believed she was consenting as she had undressed herself, appeared willing and been conscious throughout the event.
Issue:
The issue of appeal, as brought by B, was that at first instance the Court had not clarified to the jury that a person may still be capable of consenting, even where voluntarily heavily intoxicated. Rather, B viewed that the Court had implied heavy intoxication sufficed to remove one's capacity to consent, regardless of other factors. This would be contrary to the law on consent in the Sexual Offences Act 2003.
Held:
The Court of Appeal upheld B's appeal, making two main points
First, the Sexual Offences Act 2003 s.74 defines consent as where a person: "... agrees by choice, and has the freedom and capacity to make that choice" (Sexual Offences Act 2003, s.74).
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. Sir Igor Judge commented that:
"[W]hen someone who has had a lot to drink is in fact consenting to intercourse, then that is what she is doing, consenting: equally, if after taking drink, she is not consenting, then by definition intercourse is taking place without her consent." (R v Bree [2007] EWCA Crim 256 [a])
Secondly, that the Court at first instance had failed to properly direct the jury as to the legal matters relevant to this case. Specifically, little or no guidance had been given on how consent is examined in the context of voluntary heavy intoxication, despite this being crucial to delivering a verdict. Further, little or no guidance had been given on dealing with the Crown Prosecution's significant change in approach, as occurred during the case. Subsequently, it was unclear whether the jury still believed C to be unconscious at the time of the sexual activity. The Court of Appeal was critical of the earlier Court for failing to establish that alcohol may alter someone's behavior, and heavy intoxication does not automatically mean a person cannot consent. R v Olugboja [1982] QB 320 ought to have been applied, and the central issues regarding consent mentioned and summarised for the jury's benefit.

Sir Igor Judge - need of stautory framework in rape cases to help courts decide whether too much alcohol
-whether capacity have been diminished is hard to say and creating a mere stautory limit would not solve the given issue.

46

R v Bree

he defendant, Bree (B), visited his brother at University and went for an evening out with him and others, including the complainant (C). Both B and C consumed considerable quantities of alcohol, before returning to B's brother's home. Whilst C's memory from this point is poor, she recalls vomiting and having B and his brother help wash the vomit from her hair. Her next memory is of her and B having sexual intercourse. C contended that, although she had not specifically said 'no' to intercourse, she had not consented. B contended that he had reasonably believed she was consenting as she had undressed herself, appeared willing and been conscious throughout the event.

Issue:
The issue of appeal, as brought by B, was that at first instance the Court had not clarified to the jury that a person may still be capable of consenting, even where voluntarily heavily intoxicated. Rather, B viewed that the Court had implied heavy intoxication sufficed to remove one's capacity to consent, regardless of other factors. This would be contrary to the law on consent in the Sexual Offences Act 2003.
Held:
The Court of Appeal upheld B's appeal, making two main points
First, the Sexual Offences Act 2003 s.74 defines consent as where a person: "... agrees by choice, and has the freedom and capacity to make that choice" (Sexual Offences Act 2003, s.74).
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. Sir Igor Judge commented that:
"[W]hen someone who has had a lot to drink is in fact consenting to intercourse, then that is what she is doing, consenting: equally, if after taking drink, she is not consenting, then by definition intercourse is taking place without her consent." (R v Bree [2007] EWCA Crim 256 [a])
Secondly, that the Court at first instance had failed to properly direct the jury as to the legal matters relevant to this case. Specifically, little or no guidance had been given on how consent is examined in the context of voluntary heavy intoxication, despite this being crucial to delivering a verdict. Further, little or no guidance had been given on dealing with the Crown Prosecution's significant change in approach, as occurred during the case. Subsequently, it was unclear whether the jury still believed C to be unconscious at the time of the sexual activity. The Court of Appeal was critical of the earlier Court for failing to establish that alcohol may alter someone's behavior, and heavy intoxication does not automatically mean a person cannot consent. R v Olugboja [1982] QB 320 ought to have been applied, and the central issues regarding consent mentioned and summarised for the jury's benefit.

47

Heidi Hurd

consent is an attitude, formed in the mind of the consenter. Only if the consenter intends to consent to another’s actions will that amount to valid consent.

48

Nathan Brett

the parties change their rights and obligations by giving permission, which is achieved by speaking or doing consent. Consent is “not an attitude at all. It is to act in a way that has conventional significance in communicating permission’. Consent as constituted by a mental state does not work in the context of sex because we are often ambivalent in our attitudes about sex.
therefore, it is all about what we say or do to the other party;

49

Feminist


to maintain that consent is only performative could minimize the contextual importance of substantive conditions that drive consent, and could therefore be over-inclusive.
bodily force and resistance vs the negation of will and violation of the victim’s autonomy.
however, the law should avoid the dichotomy of mind/body, especially when it comes to alcohol which can obscure both of them;

50

Research

Andrea Finney’s 2004 summary of various research studies in this area shows that around 60% of perpetrators have been drinking just prior to the offense of sexual assault. BUT depends partially on the sample – for instance, in student populations, up to 81% of incidents can involve drinking on the part of the victim.
More recent research in the U.K. found that in a sample of 676 cases over eight police force areas, 38% of victims aged 16 and above had been drinking, though not necessarily to the point of intoxication, prior to the assault.
2006 government report in the form of a Home Office consultation document.

51

r v Dougal

Swansea Crown court in 2005, R. v. Dougal, where the judge directed the jury to acquit the defendant in the middle of the trial. The prosecution stated that they could not proceed because the complainant could not remember, because of intoxication through alcohol consumption, whether or not she had agreed to have sex with the defendant, who was a security guard at her University residence.6 While she asserted that there was no way she would have agreed to have sex with the man, who was a complete stranger to her, she could not remember whether she had actually consented or not, and the jury was instructed to find the defendant not guilty, the judge remarking that “drunken consent is still consent’
-concoiusness seems to stand for capacity,
-unclear whether the fact that the defendant woudl refuse lead to acquital

52

Andrew Ashworth

Although argues that this will not always be a helpful test, since a woman can still agree to have sex in advanced stages of intoxication, and, as already mentioned, the test is not scientifically precisely accurate, in rape cases the test result would not be the main piece of evidence upon which the prosecution would rely in order to prove the charge of rape, as rape is not a strict liability offense, [will always rest upon the prosecution having demonstrated the relevant mens rea].

53


What are the three things the prosecution must prove for evidential presumption?

1.) the D did the relevant act in s77
2.) one of the things in s75(2)
3.) that the D knew that the circumstance from s75(2) existed

54

Drinking while consenting

- the issue with the concept of capacity
-there is no definition of capacity in SOA 2003
-back calculate - The Crw Prosec in England and Wales have said that you could consider using that
BUT look Ashworth....

55

How we define extreme intoxication, i.e. incapacity?

SOA Reports SLC - there should something similar to what has been wirtten in the essay.
-non-exhaustive list of things

56

Rumney and Fenton

s75 hierrachy of intoxiacted victims
-voluntary (s74) v involuntarily

57

Fich and Mubri

mock rape trials - 'zero sum picture' - woman was percieved to bear some responsibility for the rape

58

Evaporating capacity

-R v Bree
-no assisstance when that point might be

59

cry rape

Peace v HMA - one of the appeal judges went so far as to say that even though the complainer had been unconscious for some of the period during which sex had taken place, that we should remember that consciousness can be intermittent and that while the complainer had earlier collapsed and had been thought to have no pulse, this did not reflect on her ability while later conscious to consent to sex. It was not claimed that the complainer had previously said that she would have sex whilst extremely intoxicated or unconscious, but rather that what appears to be extreme intoxication was found not to negate later consent, because of the presence of some consciousness. Not only that, but the judge said, where there are periods of consciousness and unconsciousness following each other in quick succession, “it is just these situations in which misunderstandings may well arise.

60

Jheeta

In B and Jheeta, the issue was when the apparent consent of someone who does have capacity is vitiated.
rule at common law was that mistake as to the identity of the other person vitiated consent; but mistake about other matters only did so if the complainant failed to appreciate the sexual nature of the act: i.e., that the other party's purpose was to gratify his sexual desires. So V's consent to D's intimately touching her was vitiated by her mistaken belief that he was carrying out a medical examination (Tabassum [2000] 2 Cr.App.R. 328); but not by her mistaken belief, fraudulently induced by D, that he meant to pay her for her sexual services (Linekar [1995] 2 Cr.App.R)
In Jheeta, D, afraid that his relationship with C was about to end, carried out a bizarre and complicated fraud. In the course of this he sent C messages which purported to come from the police, telling her that he was suicidal, and warning her that in order to prevent him killing himself she must continue to have sex with him: and that if she refused, she would be fined.
The Court of Appeal said that, in the light of section 76(2)(a), this advice was incorrect. However, the court felt able to uphold the rape convictions, on the basis that, on D's own admission to the police, there had been at least some occasions "on which the complainant was not truly consenting

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B (2006)

C alleged that D had raped her using force, but D claimed that she had consented. D was HIV positive, and so judge directed the jury that that, if they were not convinced that D had forced C to have sex with him, they could still convict him on the basis that her apparent consent was vitiated because, had she known of his medical condition, she would not have had unprotected sex with him.
But in the light of the wording of section 76(2)(a) of the SOA, C's ignorance of the risk of infection did not vitiate her consent to the sexual act.
Parliament should create a special offence of reckless endangerment; and unlike rape, it should not carry imprisonment for life.
The decision in Jheeta, I believe, is also correct in its understanding of when consent to sexual acts is vitiated by fraud or by mistake. But unlike B, the gap in the law that it reveals is glaring and obvious. It is most reprehensible to procure a sexual act by fraud, whether or not the fraud vitiates consent and turns the act into a rape; just as it is mo reprehensible to obtain property by false pretences, whether or not the obtaining also constitutes a theft.

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Can Oral sex be Rape?

risks of disease transmission.
Doubts because oral sex could easily be brought within the offence of assault by penetration
risk that classifying oral sex devalue the offence to return rape verdicts in such cases.

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the meaning of sexual

The term “sexual”, as used to describe penetration, touching or any other activity mentioned in the Act, is explained in s.78. This section cannot be said to provide a definition of the term, rather it sets out an approach for determining whether the activity in question is sexual where this may be in doubt.

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HoL what is sexual: 3 things

Under s.78 (a) the first step is to consider whether the conduct concerned would be regarded as sexual by the reasonable person because of its “sexual nature”. This is an objective test which is based upon whether the conduct is transparently sexual, irrespective of the surrounding circumstances or purposes of the accused.
Secondly, where the conduct is ambiguous and because of its nature might possibly be sexual, then, under s.78(b), the circumstances or purpose of the accused or both are to be considered in assessing whether the conduct is sexual or not. If it were to be argued that a medical procedure involving vaginal penetration was clinically unnecessary, it is not clear whether it would fall within (a) or (b).
Thirdly, as under the Court test, conduct, which on the face of it is not sexual, cannot be brought within that description by pointing to its circumstances and/or purpose. The Court test and its application have been criticised as “vague” and unclear, but a superior alternative remains to be found.

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The model suggested by the Report which set out a list of seven situations, in five of which a causal link was required between the circumstance and the ensuing sexual activity.

“Submits or is unable to resist because of force or fear of force or because of threats or fear of serious harm or because they are abducted or unlawfully detained.”
This would permit the defence to argue that there was no causal link between the force or the abduction and the sexual activity and that C had nevertheless consented.

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External approach

was to exclude causal and consent issues from the listed situations but to give the defence the opportunity to raise them. This could be achieved by framing the list in terms of a set of rebuttable presumptions. The advantage of this alternative is that it clearly demarcates prosecution and defence roles. It sets out clearly what the prosecution has initially to prove and then gives the defence free rein to raise any arguments it wishes on the consent issue.

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Consent: three routs

The first route, and that generally most favourable to the prosecution, would be to bring the circumstances within one of the conclusive (irrebuttable) presumptions in s.76.
The second route would be to bring the circumstances within one (or more) of the rebuttable presumptions in s.75.
The third route is to rely on the general definition of consent in s.74. The irrebuttable and rebuttable presumptions apply equally to the issue of mistaken belief in consent

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Conclusive presumptions

ection 76(2) sets out two situations where the presumptions are irrebuttable. D will be unable to claim consent or belief in consent. These circumstances are that: “(a) the defendant intentionally deceived the complainant as to the nature45 or purpose46 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.”
Presumption (a) re-states and slightly extends the common law. Presumption (b) extends the old law beyond cases of impersonating spouses or partners, but it is limited in two respects. First, the person impersonated must be someone known personally to the complainant. Secondly, the wording leaves it open to the defence to argue that C was not in fact induced by the impersonation to consent but consented irrespective of it. The presumption will not apply unless the prosecution establishes the causal link.

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Rebuttable Presumption

. Section 75 is headed “Evidential Presumptions about Consent,” and subs.
(1) provides that if the prosecution can prove that D did the relevant act in any of the circumstances specified and that he knew of these circumstances, then it will be presumed both that consent and belief in consent were lacking.
The list of circumstances in which the presumptions arise is not quite the same as the lists that appeared in Setting the Boundaries, or in Protecting the Public, or in the original version of the Bill.49 Although based on common law propositions, it alters them in certain ways.

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General definition of consent

The Act provides a general definition of consent in s.74: “A person consents if he agrees by choice, and has the freedom and capacity to make that choice.”
“freedom” and “choice” are ideas which raise philosophical issues
philosopher J.L. Austin said of the term “freedom” applies equally to “choice”: “While it has been the tradition to present this as the ‘positive’ term requiring elucidation, there is little doubt that to say we acted ‘freely’ … is to say only that we acted not un-freely, in one or another of the heterogeneous ways of so acting (under duress, or what not). Like ‘real’, ‘free’ is only used to rule out the suggestion of some or all of its recognized antitheses.”

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Chriticism of the 3 section approach

Moral hierarchy, so that the most serious cases of non-consent give rise to irrebuttable presumptions and the next most serious to rebuttable presumptions, with the remainder falling within the general definition? Or is the organising principle one of clarity and certainty, so that it is the clearest cases (not necessarily the worst) that give rise to irrebuttable presumptions and the next clearest to rebuttable presumptions, with the remainder falling within the general definition? Or is it a mixture of the two, with an added element of common law history? One would have thought that consideration ought to be given to marking out the worst cases of non-consent by means of irrebuttable presumptions, but that appears not to have happened. Various criticisms may be advanced.

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Should the list of circumstances in s.75 be more extensive and non-exhaustive?

To tackle such moments, ‘the Sexual Offences Review recommended that there should be... a non-exhaustive list of circumstances where consent was not present, an approach adopted by some Australian States.’ The intent was to serve as a ‘clear indication to the courts and to society at large about circumstances where sexual activity was unacceptable.’ Such an approach has been replicated to an extent by the exhaustive list found in s.76. However, feeling that this was too tougher line, the more comprehensive list of situations is found in s.75: the rebuttable presumptions.



In Canada and the Australian jurisdictions which have a statutory list of nonconsent situations, the list is non-exhaustive.66 The exhaustive list in s.75 leaves no scope for further situations to be added through the common law. Only Parliament will be able to make additions to the list. The Report, on the other hand, considered that the list simply reflected obvious situations where consent was likely to be absent, including those already recognised at common law. It was just a starting point from which “the courts will continue to develop the common law as they consider cases where different circumstances apply.”67 The Minister's justification for the list was that there was “real value in making a statement in the legislation about circumstances in which sexual activity is not acceptable.” 68 Elsewhere the Government has claimed that “it will provide juries with a clear framework within which to make fair and just decisions. It should also serve as a clear statement to the public more widely.”

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Temkin Ashworth the use of words

Before progressing further, we can already identify clear issues with such a definition. Temkin and Ashworth criticise the use of the words “freedom” and “capacity” as issues of philosophical complexity, ‘ill-suited to the needs of criminal justice’. These words cannot be intended to include total freedom or choice and are subsequently heavily context dependent: can, for example, the restriction on religious or social freedoms negate an otherwise valid consent?

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Finch and Munro

In an experiment conducted by Finch and Munro it was further found that the jury struggle with the interpretation of these words, especially in regard to voluntary intoxication, an issue which we shall touch upon later. It is possible, they note, that the changes effected in the SOA may actually prove redundant in regard consent: for example in the case of R v C, a twenty-eight year old woman with schizophrenia caused severe problems for the courts, resulting in a conviction at first instance, subsequently quashed by the Court of Appeal, and finding at the House of Lords that capacity had been insufficiently defined to the jury due to its ability to fluctuate. Such terms are therefore open to jury interpretation, rendering the matter of consent still open to jury bias.

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The evidential presumption requires proof to be adduced either to raise the issue with the claimant’s valid consent, or to display a reasonable belief in consent on the part of the defendant.

This is a particularly difficult area and has often been privy to jury bias, caused by knowledge of previous sexual involvement and horrendous issues surrounding voluntary intoxication, and individual sexual preference. The list includes violence, threat of violence, unlawful detention, unconsciousness, physical disability and causing the claimant to administer a substance which renders their consent invalid. Herring notes that such rebuttable presumptions could well prove difficult to explain to a jury: for example, if the defendant argues that the threat, or use, of violence came before the couple had made up, leading to a valid consent to intercourse. Would this be enough to rebut the presumption? If so, then this would be very easy to rebut, leaving the door open for repeated offences by abusive partners, so long as they secured a “yes”, however unwilling, before the act occurred: ‘court guidance on the meaning of, ‘sufficient evidence is adduced to raise,’ is eagerly awaited’.

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Voluntary Intoxication

In 2005, Amnesty International found that two thirds of all people asked, believed that an individual who has been drinking is partly to blame for what has happened to them, including jury members, police officers and prosecutors. Such belief’s led to the appalling conclusion in R v Dougal that ‘drunken consent is still consent’, failing to discuss capacity at all. R v Bree readdressed this balance, concluding that drunken consent was still consent, but conceding that consent might disappear before the point of unconsciousness. Wallerstein notes that, whilst this is a move in the right direction, it has not gone far enough. Following this decision, a string of appalling cases have acquitted the defendant in scenarios where the victim was too drunk to remember their response. Such a stance does no more than promulgate rape myths; leading to Wallerstein calling for a drastic reinterpretation of the law to, ‘drunken consent is not consent when the individual is very drunk’.