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Sexual Offences Notes

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Criminal: Sexual Offences Introduction - Sexual Offences Act 2003

- Sexual Offences Act 2003: came into force 1 May 2004. radical reform: repeals almost all old law on sexual offences; new offences created; old offences redefined + extended. old law inadequate: 'archaic, incoherent and discriminatory' - [David Blunkett] in 2002 White Paper Protecting the Public. reasons: modernize law; lay down clear, coherent framework; make offences gender-neutral.
+ public concern: low conviction rate for rape. relatively untested: statutory interpretation needed for many areas.

- Problem: low conviction rate for rape - difficult to prove. conviction rate for reported cases: 1977 - 32%; 2002 - 5.6%; 2010 - 19%. many cases dropped before trial: by complainant, by CPS. conviction rate for cases going to trial: 2002 - 21%; 2010 - 71%. but still difficult to prove: forensic ev. can prove sex but not lack of consent; often complainant + defendant have past sexual history.

Rape - s1 Sexual Offences Act 2003

Actus Reus

- Penetration of vagina, anus or mouth with a penis.

penetration: s79(2): 'continuing act from entry to withdrawal' ? consent given at time of entry can be withdrawn, person penetrating liable if penetration continues. slightest degree sufficient: s79(9): vagina inc. vulva. penile: penetration with any other part of body or object NOT rape - may be covered by assault by penetration (s2). inc. surgically constructed penis: s79(3). who may be liable?: 'a person'. man: clearly liable if all elements satisfied. woman: generally NOT guilty of rape if forces man to have sex with her (instead: s3 or s4). but: may be accessory to rape (DPP v K and B [1997]). husband liable for raping wife: R v R [1991] - previously: consent by marriage. transsexuals: s79(3) - penis inc. surgically constructed penis. victim: 'person' - can be man, woman or s79(3): transsexual.

- Absence of consent: under definition (s74) or statutory presumptions against consent (s75 + s76).

a. s74: definition: new law - previously undefined: R v Olugboja [1982]. agreement by choice: positive agreement not just lack of protest/resistance. R v Larter [1995]: victim apparently asleep ? still rape: lack of protest insufficient. R v Malone [1998]: victim intoxicated - did not consent. freedom to make the choice: i.e. not under threat of violence. range of threats unclear: R v Olugboja [1981]: not limited to force, fear or fraud (old).

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