#17376 - Sexual Offences - Criminal law

Sexual Offences

Statutory Offences

• ‘with his penis’

  • Note also, s.79(3)- Includes surgically constructed

• ‘the anus, vagina, or mouth of B’

  • Note also, s.79(9).- Vagina includes vulva

  • Note also, s.79(3)- Includes surgically constructed

• ‘penetrates’

  • s.79(2) – a continuing act from entry to withdrawal. Therefore, even if consent is withdrawn or no more any reasonable belief= rape.

  • R v Kaitamaki (1985) – D had sex with V and believed she was consenting – upon realizing that she objected he did not withdraw – held that this was rape, when he realised no consent mens rea was formed and this was a continuing act thus there was coincidence of actus reus and mens rea to found liability.

Only a man can commit rape but not only a man can be raped.

• Conduct= Penetration with a Penis.

• Consequence= Not required.

• Circumstance= Without consent.

Mens rea= No reasonable belief of consent (objective test).

• R(F) v DPP [2013] EWHC 945 (Admin)- No agreement by choice i.e. no consent; V consented to sex without ejaculation – D refused to take this into account – held that there was no agreement by choice, she did not agree to the act that took place KEY OPINION: Lord Judge CJ – choice is crucial to the issue of consent – she was deprived of her choice relating to a crucial feature on which her original consent was based – case turned on an express condition.

• ‘touches’- Doesn’t need to be flesh on flesh. R v H [2005] – D grabbed onto the fabric of V’s tracksuit – held that this was no unambiguously sexual by nature but in the context a reasonable person would view it as being sexual – touching included through material o ‘Sexual’ is defined in s.78

• Activities that are always sexual mean all others are never sexual

• Considers whether a reasonable person would deem this sexual because of its nature or in view of the circumstances or purpose of any person in relation to the touching

• R v George (1956) – D had a shoe fetish, would remove shoes from women’s feet – found this sexually gratifying – held that given his fetish and purpose a reasonable person would find it sexual.

• If D puts V in fear of imminent touching this is a simple assault, not sexual assault.

Consent: - agree by choice

- Freedom to choose

- Capacity to choose

Burden of proof = on prosecution.

Relevant to actus reus and to mens rea

‘reasonable belief as to consent’ (the mens rea aspect)

R v B (MA) [2013]– D had sex with V on two occasions without her consent – D argued he was schizophrenic, expert evidence suggested sexual acts could have been motivated by delusional beliefs, prevented D from understanding V’s lack of consent – held that delusional beliefs were by definition unreasonable, belief in consent must be reasonable beliefs in consent arising from conditions such as delusional illness or personality disorders must be judged by objective standards of reasonableness KEY OPINION: Hughes LJ reasonableness can depend on an ability to read subtle social signs and impairment to do so can therefore be relevant to the reasonableness of his belief.

Whitta [2006] EWCA Crim 2626- D met a girl at a party, agreed to have sex – D entered a bedroom, made sexual advances to a woman in a bed – was not the girl but the mother of the host – held that a reasonable person would realize V was not the girl he had met – convicted. Crown court decision therefore not authoritative. COA = just looking at sentencing. Statute says that A has to believe that B is consenting not 3^rd party! – Perhaps better statutory drafting is needed.

• Agreement by choice i.e. consent; o R v B [2006] – D did not disclose HIV positive status to V – held that this did not mean there was a lack of choice – assumed that when consenting V did not characterize the act as ‘sex with a person who was not HIV positive’ – thus consented to the act that occurred, agreed by choice – non-disclose of HIV status was irrelevant to consent but a non-sexual offence against the person KEY OPINION: Latham LJ – act remains consensual.

• No agreement by choice i.e. no consent; o R(F) v DPP [2013] – V consented to sex without ejaculation – D refused to take this into account – held that there was no agreement by choice, she did not agree to the act that took place KEY OPINION: Lord Judge CJ – choice is crucial to the issue of consent – she was deprived of her choice relating to a crucial feature on which her original consent was based – case turned on an express condition.

  • Assange v Swedish Prosecution Authority [2011] – V consented to sex with a condom – D removed the condom during sex – held that V did not consent to the act that took place as there was no agreement by choice – V was deprived of her choice relating to the crucial feature on which her original consent was based – thus consent was negated – case turned on the negation of an express condition.

  • R v McNally [2013] – V consented to sex with D whom she had met online, D was pretending to be male – held that deceit as to gender meant that V did not have sufficient freedom to agree by choice NOTE: s.74 applied, s.76 did not – distinguish from Assange and F, issue was not violation of an express condition but a material deception – based on the nature of the elements of choice and freedom deception as to gender can vitiate consent – in a physical sense the acts are the same regardless of gender but the deliberate deception means that V was deprived of her freedom to choose whether or not to have a sexual encounter with the person OBITER CONSIDERATIONS: all deceptions do not vitiate consent – common lies will not vitiate consent – court gave example of deceptions as to wealth NOTE: whether there is deception as to gender should be considered based on how D perceives their gender, what steps they have taken to live as their chosen identity and whether they have taken steps to acquire a new gender status. Charged under s.2 (Assault by penetration).

‘Choice’ refers to the relevant act.

• There must be at least the appearance of a choice being made

• Failure to resist is not agreement o R v Malone [1998] – D had sex with a 16 y/o girl while she was intoxicated – V claimed she was unable to resist, did not actively object but was not consenting – D claimed she was awake and did not resist therefore consented – held that there was no presumed consent as a result of lack of resistance, lack of choice and agreement must not be verbally expressed.

• Choice and agreement must not be explicitly expressed by V Can make the choice in their mind

  • Makes it difficult for D to prove reasonable belief o Consent can be implied

  • Collins v Wilcock (1984) – KEY OPINION: Goff LJ – implied consent exists where there is jostling in crowded places, handshakes, back slapping, happing to gain attention – provided no more force was used than reasonably necessary in those circumstances. (Not a sexual assault case oh!)

• Consent to one act does not constitute consent to another

• o Not up to the Courts to decide whether the distinction between the act that was consented to and the act that occurred is sufficient

o Depends on V’s choice

• Sexual autonomy

• If V believes there was a ‘gap’ between what was consented to and what occurred there may be a lack of consent.

• V can make any factor the determining one in consent, given that they make this clear.

• Key consideration is what V believes they are consenting to - Some deceptions have an integral effect on this and negate consent.

o Others are auxiliary and not sufficient to alter V’s overall perception or characterization of the act- Do not negate consent

• Agreement can be conditional = Conditional consent

o R v Linekar [1995] – D procured a prostitute, promising to pay GBP 25 – had no intention to pay, did not pay, V claimed this was rape – held that the deception did not go to the nature or purpose of the act – NOTE: pre-SOA – raises question of how for deception as to purpose must go – could argue that if V had known the full facts she would have withdrawn consent ergo there was rape

V cannot make a valid choice without the freedom to make said choice o R v Jheeta [2007] - V met D in college, began a sexual relationship, consensual sex took place over a period of time – V began to receive threatening text messages, calls, etc. being secretly sent by D – V confided in D, D assured her he would go to the police – D sent messages to V on behalf of the ‘police’ – V eventually tried to end her relationship with D, received messages from the ‘police’ telling her that D had attempted suicide and it was her obligation to take care of him and even sleep with him or she would be liable – held that V having intercourse with D was not free choice as persuasion had taken the form of pressures imposed by the scheme D fabricated – appeal was dismissed as D had been aware of the fact that V was not consenting for the purposes of s.74. Court set out how s.76 should be interpreted; strictly and narrowly constructed because of its dramatic effect, section will apply rarely, deception must go to the nature of the act not peripheral matters – held that conclusive presumptions did not apply to D’s deceptions as they did not go to the nature and purpose of the act but this did not mean that fraud was irrelevant to consent.

• V is free enough to make a choice if they feel that their ability to choose is not overgone by the...