WS 3 Sexual Offences Flashcards Preview

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Flashcards in WS 3 Sexual Offences Deck (30)
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1
Q

R v R [1991]

A

R v R [1991] – held that a husband could rape his wife.

2
Q

s.142 Public Order Act 1994

A

amended the offence of rape to include men as well as women as victims

3
Q

AR of s.1 SOA 2003 (Rape) (life)

A

1) Penetration of the vagina, anus or mouth
2) Of another person
3) With penis
4) V does NOT CONSENT (see box below)

4
Q

s.79(3) SOA 2003

A

Rape offence covers transsexuals also

5
Q

s.79(2) SOA 2003

A

Penetration is a continuing act. Therefore any withdrawal of consent by the victim during penetration suffices to committ the actus reus of rape.

6
Q

R v Kaitamaki [1985]

A

consent can be withdrawn at any point during penetration. Any continuation by D will amount to the AR of rape (as penetration is a continuing act – s.79(2))

7
Q

Definition of consent?

A

Definition of consent (s.74): agreeing by choice, having the freedom and capacity to make that choice.

8
Q

R v Kirk rule and the facts

A

situations of desperation/coercion may remove your capacity to consent. Submission is not consent. C was a young girl who had been sexually abused by the D and others. When homeless, hungry and desperate she had sex with the D in return for some money for food. The D was convicted of rape on the basis that C had submitted rather than consented

9
Q

R v Bree [2007] Court of Appeal

A

drunken (voluntary intoxication) consent may be valid, but – depends on whether V still capable of choosing (capacity may evaporate before unconsciousness)

10
Q

R v Dougal [2005]

A

Swansea Crown Court: V said she “couldn’t remember consenting”. This was fatal to prosecution – they must prove lack of consent.

11
Q

MR of s.1 SOA 2003 Rape

A

1) Intentional penetration by D
2) Lack of reasonable belief in CONSENT (under s.1(2) whether belief is reasonable is determined with regard to all the circumstances including steps taken to ascertain whether the V consented)

12
Q

AR of s.2 Assault by Penetration (life)

A

1) Penetration of vagina or anus of another person
2) With a part of D’s body or an object
3) V does NOT CONSENT (see box below)
4) Penetration is ‘SEXUAL’

13
Q

MR of s.2 Assault by Penetration (life)

A

1) Intentional penetration

2) Lack of reasonable belief in consent

14
Q

AR of s.3 sexual assault (10 years)

A

1) D touches V
2) Touching is ‘SEXUAL’ (see above for meaning)
3) V does not consent to the touching

R v H: touching of clothing may be sexual

15
Q

R v H [2005] CA

A

o Facts: Court of Appeal. V approached by a man who asked, do you fancy a shag? The V walked away but was subsequently approached by the same man who asked if she was shy. Man tried to pull V towards him by grabbing at a pocket that was located at the side seam of trousers. CA held that touching of an individual’s clothing was sufficient to amount to touching under s.3. CA also confirmed that where it was not clear whether touching was by its nature ‘sexual’ or not, it was appropriate to ask the jury to consider 2 questions:
o Could it reasonably be considered as sexual?
o Could it reasonably in all the circumstances of the case be considered that the purpose of the touching had in fact been sexual?

16
Q

MR of s.3 Sexual Assault (10 years)

A

1) D INTENTIONALLY touches V

2) Absence of reasonable belief in CONSENT

17
Q

Definition of sexual?

A

• Objective test for the jury
• S.78 definition: any activities which:
o By their nature are sexual; or,
o By their nature MAY be sexual, and due to the circumstances, IS sexual

R v H:

o Could it reasonably be considered as sexual?
o Could it reasonably in all the circumstances of the case be considered that the purpose of the touching had in fact been sexual?

18
Q

When is there an irrebuttable presumption of lack of consent?

A

a) D intentionally deceives V as to the nature/purpose of the act (narrowly interpreted – R v Jheeta; R v Devonald)
b) D intentionally induces consent by impersonating a person known personally to V

19
Q

R v Jheeta (Harvinder Singh)

A

D deceived C into believing she would be fined by the police if she did not have sex with him. Court of Appeal interpreted s.76(2)(a) narrowly saying although there had been deception, this was not deception as to the nature/purpose of act. However, he was still charged as C had not consented.

20
Q

R v Devonald

A

R v Devonald: CA held that the jury was entitled to find the D had deceived the C as to the ‘purpose’ (if not the ‘nature’) of the act. The D wanted to take revenge on the C for jilting his daughter. Posed over internet as a woman and persuaded the C to masturbate on a webcam for the sexual gratification of the pretend girl. Charged with causing a person to engage in sexual activity without consent under s.4 SOA 2003. Court took broader view of s.76(2)(a) – thought was for sexual gratification of cassey not others, therefore deceived as to purpose.

21
Q

s.75(1) rebuttable presumption of lack of consent

A

s. 75(1): REBUTTABLE presumption of lack of consent where:
a) D did the relevant act;
b) Any of the following 6 circumstances existed; and,
c) D knew the circumstance existed

22
Q

s.75(2) six scenarios

A

a. Violence or threat of thereof against V; or
b. Causing V to fear violence or threat thereof
c. V was, and D wasn’t unlawfully detained
d. V was asleep/unconscious
e. V cannot communicate to D due to physical disability
f. V is intoxicated by D without V’s consent

23
Q

How does D rebut a s.75 presumption?

A

By producing evidence to the contrary.

24
Q

What if woman alleges she was intoxicated at the time of the act because of a drug the D provided for her?

A

s.75(2)(f) presumption. Whether or not the presumption applies will depend on whether the D administered or caused his victim to take the drug without her consent. Presumption is rebuttable by evidence, but we require further information as to:

a) Whether D did supply or administer the drug;
b) If D did, whether such was without the consent of V
c) Whether drug capable of stupifying at time of alleged offence

25
Q

AR of s.9

A

1) D touches V who is under 16
2) Touching = sexual

s.9 Can only be committed by someone 18 years or over

26
Q

MR of s.9

A

1) D intentionally touches V
2) V is under 16 and D doesn’t reasonably believe that C is 16 or over; or
3) C is under 13 (strict liability if so)

s.9 can only be committed by someone 18 years or over

27
Q

s.9(2) SOA 2003

A

Offence of sexual activity with a child under s.9(1) is indictable only and the max penalty is 14 years if penetrates mouth with penis or vagina or anus with part of body. Otherwise, the offence is either-way.

28
Q

AR of s.13 SOA 2003 (5 years)

A

1) D touches V who is under 16
2) Touching = sexual

s.13 can only be committed by someone who is under 18 years

29
Q

MR of s.13 SOA 2003 (5 years)

A

1) D intentionally touches V
2) V is under 16 and D doesn’t reasonably believe that C is 16 or over; or
3) C is under 13 (strict liability if so)

s.13 can only be committed by someone who is under 18 years

30
Q

If the victim is under 13?

A

ss. 5, 6, 7 of SOA 2003 replicate offences under ss.1-3 where the victim is a child under 13. However, under ss.5,6,7, neither the consent of the V nor the D’s belief in consent is a relevant issue. Strict liability as to age of child.