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Sexual Offences _______________________________________________________
S. 1 Rape Old Law: Actus Reus At common law, consent vitiated by force, fear or fraud: R v Oluboja V raped but took her trousers down & made no protest until during intercourse as she was afraid D was going to ejaculate inside her Held: 'force' was assimilated with submission - conviction upheld. Normal direction should leave consent to the jury's good sense Consent vitiated by deception as to the nature of the act: R v Williams D, choir master, induced a young chorister to engage in intercourse because he told her it was a medical operation to increase the air ways Held: this was rape as deception went to the very nature of the act R v Linekar D promised V that he would pay her PS25 for sex but then ran away after intercourse Held: the deception did not go to the nature of the act - she had consented to sex. S. 3 Sexual Offences 1956 would have been suitable - procuring sex by false pretences R v Tabassum D said he was a breast cancer medical practitioner & felt women's breasts Held: the deception as to his medical status meant the act went to the nature of the offence R v Devonald Father in law posed as a girl to get daughter's ex-boyfriend to wank on camera Held: this went to the nature of the act - it was no longer about sexual gratification but to do with humiliation NB: this is out of kilter with R v Linekar where the act was about money for V Consent vitiated by impersonation: R v Elbekkay
V lived with bf and on a night out with friends they went back to the flat where D went into her room. She thought it was her bf and they began to have sex until she realised a few seconds later Held: this was deception as to identity which is not limited to the husband, will be the partner too
Old Law: Mens Rea (See 'Rape & Recklessness' under Causation doc) Fault element: the Morgan Principle was established on the basis that mens rea for rape was intention or Cunningham recklessness (R v Satnam) - it established a defence of a mistaken belief DPP v Morgan (above): an honest belief in circumstances, even if that belief is an unreasonably held one, will negative the fault element for rape Gladstone Williams case is an example of this being applied to a non-sexual crime where D believed he was apprehending a thief, but really was apprehending the apprehendor of a thief
New Law Sexual Offences Act 2003 S.1 - offence (1)A person (A) commits an offence if---
(a)he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, (b)B does not consent to the penetration, and (c)A does not reasonably believe that B consents. (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. (3)Sections 75 and 76 apply to an offence under this section. (4)A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.
? This replaces recklessness as a requirement of rape & lowers it, in part, to a negligence standard of fault (assessment of a risk and unreasonably concluding there is none)
? Subjectivity is a big question here S. 74 - definition of consent "a person consents if he agrees by choice, and has the freedom and capacity to make that choice.
S.75 - evidential presumptions about consent
? Violence/fear of violence
? Unlawfully detained
? Physical disability/unable to communicate consent D has administered a substance which leads C to be stupefied or overpowered S.76 - conclusive presumptions about consent
? Deception as to the nature or purpose of the relevant act
? Impersonating a person who is known personally to C
? Keith Laird: S.74 is the main focus of sexual offences as S.76 conclusive presumption have not been picked up by the courts S.76(b) - codifies impersonation/deception as to identity but includes undefined words 'known personally to C':
? D Ormerod: asks whether a created identity is a person known to C Restrictive definition of 'nature' deception:
? A Reed: criticises that there is NO procurement type offence in the new Sexual Offences Act
? J Herron: suggests procuring by false pretences or misrep might be caught by rape
Deception HIV transmission covered by S.20 Offences Against the Person 1861 RvB Sex outside a nightclub - V ran into passersby. D had HIV and had not disclosed this. Could this vitiate consent?
Held: non-disclosure did not vitiate consent to sex - this was a traditional 'nature' of sex case - not the quality of the sex, as this is collateral Imposing conditions on consent: R v Assange C stipulated that a condition of sex was wearing a condom Held: obiter that consent could have been vitiated by non-wear, removal or deliberate tearing R(F) v DPP
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