Sexual Offences Notes

Governed by Sexual Offences Act 2003. Old law was much criticised:

• Discriminatory e.g. marital exemption to rape only abolished in 1991. age of consent for homosexuals (illegal until 1967), women better covered

• Narrowness/breadth of offences. Non-consensual oral sex was not classified as rape.

• Law relating to consent it unclear. Are crimes against children strict liability offences? Unclear.

CONSENT

• Defined in s.74 – to agree by choice, and has the freedom and capacity to make that choice.

  • So children cannot consent (relevant offences in s.5 and ss.15-19). Nor can the mentally disabled. There are special offences that can be charged for sex with the mentally disabled (ss.30-37), which Baroness Hale said might be easier to charge, but one of the ss.1-4 offences can easily be charged also.

Conclusive presumptions of consent – s.76:

• Identifies situations in which a lack of consent if conclusively presumed i.e. if the prosecution can show one of them to be the case, a lack of consent would be accepted plainly:

  • Where D intentionally deceived V as to the nature or purpose of the act.

  • D intentionally induced V to consent by impersonating a person personally known to V.

• Note that a jury, on failing to satisfy this, can still find no consent based on s.74.

The deception cases:

• In these cases there must be a deception by D. There will be no conclusive presumption where V was merely mistaken.

• The deception must be intentional.

• The deception must relate to nature or purpose of the act:

  • Williams – a singing teacher had sex with his pupil in what he told her were ‘breathing exercises’. The act was different in nature to that which V consented to.

  • Lesser deceptions generally will not vitiate consent e.g. Linekar (man refused to pay prostitute) and Papadimitropolous (sex before marriage). Miles is critical of the fact that such deceptions go unpunished.

  • In Tabassum D pretended to be carrying out medical research inspecting breasts. The court wanted to convict him so said that he had deceived the women as to the ‘quality of the act’ i.e. unqualified medic v qualified.

• There has been a great deal of litigation in establishing lack of consent:

  • R v EB – D was HIV+ and had not disclosed this to V. The prosecution argued that this non-disclosure changed the nature of the act and conclusively disproved consent. CoA disagreed, but accepted that D would be liable for any harm that arose from that non-disclosure e.g. a s.20 OAPA offence. She was still consenting to the sex. No deception as to the act.

  • R v Jheeta – D had been having a relationship with V. When the relationship cooled D sent threatening text messages anonymously to V. She asked D (not knowing it was him) what she should do. He offered to contact the police. He then, over several years, posed as a police officer texting her and told her to continue having sexual relations with him. CoA ruled that she had been deceived as to the situation she found herself in, but not the nature or purpose of the act, so s.76 did not apply. He was, however, still guilty of rape on the basis of ‘free choice’ in consent.

  • R v Devonald – D posed as a 20 year old girl. He sought to meet his daughter’s ex-boyfriend, who was 16. Under his disguise he got V to masturbate on webcam for him. He intended to upload the video to the Internet and cause him embarrassment as revenge for treating his daughter badly. He was charged with s.4 offence of causing a sexual activity without consent. The court held that he had been deceived as to the nature/purpose of the act – V believed he was doing a sexual act for a sexual purpose but he was not.

• Some cases (such as Williams) make it seem like V has to think the act is wholly unisexual, but Devonald makes clear that this is not necessarily the case.

• Does the deception render the act wholly different to what V thought he was doing? This is perhaps a good way of thinking about it.

  • In Green and Tabassum, Vs did a sexual act that they thought, contextually, not to be sexual. However D derived sexual gratification and thus there has been deception.

The impersonation cases:

• There must be an impersonation. Again, V’s mistake will not render consent invalid (V in Elbekkay mistook D for her boyfriend).

• The impersonation must be of someone personally known to V. Note that Vs are not taken to personally know famous people.

• Oddly, even if V is not convinced by the impersonation, consent may still be invalidated.

Evidential presumptions of consent – s.75:

• These, unlike the conclusive presumptions, are rebuttable.

• So unless sufficient evidence is raised by the defence disprove the claim, it will be taken that V did not consent when:

  • Violence was used against V, or V feared immediate violence against him or another person.

  • V was unlawfully detained at the time.

  • V was asleep or otherwise unconscious.

  • V could not communicate consent due to physical disability.

  • D gave be a stupefying or overpowering substance (should this include alcohol in the case of involuntary intoxication?)

• If the defence rebut the presumption, the prosecution must prove AR/MR beyond reasonable doubt. Note that there is debate about how ‘sufficient’ evidence has to be and clarification is awaited.

Consent in its general meaning – s.74:

• Active agreement is required to class as consent. There is no need to show resistance or even apparent opposition.

• Having sex with someone who is asleep rape because active consent is not gained – Lartner.

• Although this may seem like a high barrier, remember that the jury must be convinced beyond reasonable doubt that V was not consenting.

• It doesn’t matter how much it looks like V is consenting – is it whether consent actually existed that matter.

Voluntary intoxication is always an interesting point:

• R v Bree – D walked his brother’s friend home after that had all had a lot to drink. D and his brother washed her hair after she was sick. She remembers nothing until waking up being penetrated by D. She...

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