Sexual Offences Notes

• 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    • s79(2): ‘continuing act from entry to withdrawal’ consent given at time of entry can be withdrawn, person penetrating liable if penetration continues.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).

      • R v Jheeta [2007]: d. faked threatening messages to pressure v. to have sex with him no choice.

    • capacity to make the choice: ability to understand issues + implications of consent – inc. victims too young or mentally incapable.

      • capacity not defined in Act: unclear how courts will approach.

      • intoxicated consent: R v Bree [2007]: v. + d. both voluntarily drunk.

        • subjective: dep. on ‘actual state of mind of the individuals’.

        • practical reality: capacity may evaporate before unconsciousness.

        • evidential problem: often no independent evidence.

        • further reform: danger of ‘patronising interference’.

  • b. s75: evidential (rebuttable) presumptions

    • presumptions: (i) complainant did not consent; (ii) d. did not reasonably believe complainant consented.

    • for presumptions to apply, prosecution must prove: s75(1)

      • d. did relevant act: s75(1)(a) (relevant act: s77 – for rape: penetration)

      • 1 of circumstances in s75(2) existed at time of act: s75(1)(b).

        • N.B. no requirement that circumstances in s75(2) caused lack of consent.

      • d. aware that those circumstances existed: s75(1)(c).

    • rebuttable: d. must adduce ‘sufficient evidence’ to raise issue over consent/reasonable belief.

      • burden of proof still on prosecution: once d. raises issue, must disprove – s75(1).

      • but in practice: difficult to rebut – circumstances powerful.

    • s75(2): circumstances giving rise to presumption.

      • (a) threat of violence vs. complainant by anyone – at time or immediately before.

        • violence: undefined in Act; rebuttable: e.g. sado-masochism.

      • (b) threat of violence vs. another by anyone – at time or immediately before.

        • other person: no relationship required with complainant, but harder to rebut if so.

      • (c) complainant unlawfully detained (+ d. not).

        • rebuttable: detained person still has some capacity to make decisions.

      • (d) complainant asleep/unconscious.

        • rebuttable: e.g. where woman consents in advance to penetration while asleep.

      • (e) complainant physical disabled unable to communicate consent.

        • rebuttable: d. not aware of disability or fact that this prevented communication.

      • (f) substance administered to complainant by anyone without consent that was capable of stupefying/overpowering complainant.

    • application:

      • R v Olugboja: (old case) d. had not directly threatened violence but friend had sufficient to negative consent.

      • R v Bree: voluntarily intoxication presumptions do not apply (but capacity issue).

  • c. s76: conclusive (irrebutable) presumptions

    • presumptions: (i) complainant did not consent; (ii) d. did not believe complainant consented.

    • for presumptions to apply, prosecution must prove: s76(1)

      • d. did relevant act (relevant act: s77 – for rape: penetration).

      • 1 of circumstances in s76(2) existed: no requirement that caused lack of consent.

    • irrebutable: if circumstances exist, lack of consent always presumed – s76(1)(a)

    • s76(2): circumstances giving rise to presumption.

      • (a) d. intentionally deceived v. about nature or purpose of relevant act.

        • R v Flattery [1877]: d. told v. he was performing surgery on her consent negated.

        • R v Williams [1923]: d. (singing teacher) told v. penetration was breathing exercise consent not valid.

        • R v Green [2002]: doctor wired young men to monitors while they masturbated on pretense of assessing potential for impotence.

        • stringent test: not just any deception.

          • R v Linekar: man failed to pay prostitute NOT deception as to nature: financial motive secondary.

          • R v EB [2006]: lied about HIV status – only as to attribute, NOT nature.

          • R v Jheeta [2007]: d. faked...

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