Criminal law- sexual offences
R v R
the court said if there is no consent even in marriage this could still be rape, this was challenged on the basis that he was convicted by retrospective law making that at the time of the offence, rape within marriage was lawful and therefore he shouldn’t have been convicted, however the ECHR said that society had changed and therefore he was guilty.
Hughes
Slightest degree of penetration of the external genitalia, vagina or anus or mouth.
R v B
The D had a paranoid schizophrenia and has a number of delusional beliefs. he appealed against his conviction of rape on the basis that his delusional state could have led him to reasonable believe his partner was consenting, the CoA said that these types of mental illness should not be taken into account in determining whether or not a belief is reasonable.
R v Jheeta
D appealed against his conviction of rape on the grounds that he deceive the complainant as to the nature or purpose of the acts. Jheeta and the C had been in a sexual relationship and when this relationship broke down, Jheeta started sending threatening messages to the complainant anonymously. she was still friends with him and so she told him that she was receiving these really threatening messages, he confided her that he would held and said he would go to the police on her behalf. then he pretended to be a police officer. he said that she should arrange to have security, maybe the D, to help protect her from this anonymous person. on a number of occasions she had sex with the D because the police had told her that otherwise she might have to pay a fine to the D for causing him distress. the CoA said that there hadnt been a deception as to the nature or purpose of the acts as the C still understood that she was consenting to having sexual intercourse. there was no presumption that the C lacked consent and D had no reasonable belief in consent. however the Ds conviction was still safe because he could be convicted under the general definition of consent in s74
Malone
the complainant, to show that there was no consent, doesnt not need to demonstrate resistance because consent is based on an active agreement. it was also emphasised that the complainant doesnt need to communicate or demonstrate lack of consent in any way
R v Olugboja
There is a difference between consent and submission and generally speaking the issue of consent should be left up to the jury and that consent is to be given its ordinary meaning
Doyle
What directions if any should the judge be giving the jury about the meaning of consent beyond the definition given in SOA. CoA, on the appeal against the direction of submission means the absence of free agreement, they held the judge should give this if the case involves a comparison between free exercise of choice on one hand and unwilling submission to demand for sex in favour of adverse consequences on the other.
R v Kirk
V was a young woman who had run away from home and was sleeping where ever she could find, she didn’t have any money and D had already helped her out, he said he would give her money if she had sex with him, he was convicted of rape. there was a difference between consent and non consensual submission, CoA said jury would not have been mislead so he was guilty.
C
appealed against being convicted of many sexual offences against his step daughter, she was 25 and claimed she had been sexually abused over the last 20 years, appeal was that there was no sexual nature until she was 16 then they were in sexual consenting relationship.
Ali
both Ds had targeted young girls and grooming them then sexually assaulting them. the court said that grooming and exploiting young girls was not true consent.
R v C
involves other sexual offences, in determining whether a person has the capacity to consent these three things must be considered. whether the person is able to understand the relevant information, whether they are able to weigh up that information, to be able to make a choice
R v Dougal
involves two students who had been drinking and D was aware she was very drunk however it became clear that she couldn’t remember if she consented or not. because of this the judge guided the jury that drunken consent is still consent. however this was critisised as the jury should decide this
R v Bree
Ds conviction was quashed as the judge did not inform the jury that if someone is drunk they can still consent. there is no clear line between intoxicated consent and too intoxicated to consent, this is up to the jury to decide
Seedy Tambedou
evidence that she could not recall whether or not she did consent was not, without more, sufficient to prompt the judge to withdraw the case from the jury. The jury was entitled to consider absence of consent and to distinguish it from evidence of absence of memory.
R v Dica
where the defendant conceals their HIV status from a sexual partner, this would not be rape as the person is still consenting to sexual intercourse
Assange v Swedish prosecution authority
involved an extradition case and this was a question of whether assange who was basically a whistleblower in the british embassy. it was a question of whether if a woman had agreed to have sex with a person, only if they wore a condom, but then this person did not, would this be rape. there was no consent here, she was putting a condition on sex and there was an express condition
R (F) v DPP
a woman sought a judicial review of a decision by the DPP not to prosecute her former partner for rape or sexual assault. the complainants case was that her partner had agreed to penetrate her but not ejaculate inside her, but despite this express condition, he did. the HC said choice and freedom is needed for sexual consent
R v McNally
D was assigned F at birth however identified as M. D met V online and formed a relationship and agreed to meet and D identified as M and V knew them that way. however D did not disclose her was a girl and had female genitalia, it was a case of sexual assault by penetration, the question was whether what they framed as gender deception could vitiate consent. the CPS held this was a fraudulent deception because the C identifies themselves as heterosexual, and therefore her freedom to choose was vitiated
what is the Key legislation for sexual offences?
- Section 1 Sexual Offences Act 2003
1. A person (A) commits an offence if-
1. he intentionally penetrates the vagina, anus or mouth of another person (b)with his penis;
2. does not consent to the penetration and
3. A does not reasonably believe that B consents.
2. Whether a belief is reasonable is to be determined having reguard to all the circumstances, including any steps A has taken to ascertain whether B consents
what is the actus reus?
- Section 1(1)(a) and (b): D penetrates the vagina, anus or mouth of V with his penis and V does not consent to the penetration
- D must have a penis
- Includes surgically constructed genitalia (SOA 2003, s.79(3))
- Victim can be any gender
- Degree of penetration:
- Hughes
- Penetration is a continuing act from entry to withdrawal – section 79(2)
- V does not consent
what is the mens rea for rape?
- D intended to penetrate the vagina, anus or mouth with his penis and D did not reasonably believe that V consented to the penetration
- Reasonable belief in consent Sexual Offences Act 2003, s1(1)(c):
- A does not reasonably believe B consents
- s 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
- R v B
what are the steps to determine consent in rape?
step 1: conclusive presumptions s76
step 2: evidential presumptions s75
step 3: general meaning of consent s74
what are conclusive presumptions?
- Conclusive presumptions – if facts proved, not rebuttable (s 76)
- Deception as to nature and Purpose of the act; Section 76(2)(a)
- R v B, R v Jheeta,
- Section 76(2)(b)
- impersonating a person known personally to the complainant
- Deception as to attributes not included. eg lies to make the person like you (i have money), this deception may still come under the general definition if the jury find this deception means they have not truely given consent
what are evidential presumptions?
- Evidential Presumptions (rebuttable), s75
- If certain circumstances exist then B is taken not to have consented and A not to have a reasonable belief in consent unless sufficient evidence is adduced
for example, asleep or otherwise unconscious
what is the general consent [rovision
Section 74, Sexual Offences Act 2003
General definition of consent, section74, Sexual Offences Act 2003: Agrees by choice and has freedom and capacity to make that choice
what does free agreement mean?
is an active agreement in consent, does not been to show resistence or lack of consent- malone
the issue of consent needs to be left up to the jury and consent is to be given its ordinary meaning. there is a difference between consent and submission- R v Olugboja, doyle
economic coersion means no consent- R v Kirk
groomed/frightened into submission means no free agreement- C, ali
what does capacity to consent mean?
R v C- three things must be considered. whether the person is able to understand the relevant information, whether they are able to weigh up that information, to be able to make a choice
the capacity and intoxication
- drunken consent is still consent- R v Dougal
- there is no clear line between intoxicated consent and noo intoxicated to consent, this is to be left up to the jury- R v Bree
- the jury is entitled to consider absence of consent and to distinuguish it from evidence of absence of memory- Seedy tambedou
what does agreed by choice mean?
there is no rape in reguards to deception about a persons sexual health. R v Dica R v B
there is deception reguarding expressed condition of sex. Assange v swedish, R (F) v DPP
there is deception in reguards to gender identify and gender history R v McNally