#14659 - Sexual Offences - GDL Criminal Law

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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 25 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

• Asleep/unconscious

• 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

R v B

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

C stipulated that D pull out before ejaculation

Held: where D specifically went against the condition, this removed freedom to consent under S.74

Posing as a boyfriend:

R v Bingham

D encouraged V to masturbate on webcam leading her to believe it was his friend, her bf

Held: at trial this was a S.76, but convicted under S.74. The purpose was for sexual gratification, albeit not for the right person’s benefit.

Gender:

R v McNally

D born female pretended to be a boy and had sex with V

Held: Assange and Bingham were about features/collateral qualities of the act, whereas gender is more intrinsic to the act. This is not, however, S.76 conclusive presumption but rather a S.74 vitiation of consent because freedom to choose has been displaced

Intoxicated Consent

R v Bree

V Bournemouth uni student who got drunk with D, the older brother of her flatmate – varying stories as to incident. V was sick and D helped her and he said she invited him to engage in sexual touching & consensual intercourse. P presented case that she was unconscious. This changed to allegation she was not giving consent

Held: (trial judge) intoxication only relevant to reliability of witness

(CA) S.74 general test of consent will take consent into account intoxication

• No alcohol grid system

• Intoxication may vitiate consent before unconsciousness

• HOWEVER drunken consent is still consent (A Ashworth has recommended this phrase not be adopted)

• Consent is a legal threshold, not a philosophical or social one (it is thinner than A Ashworth’s “freedom, choice and capacity”)

• Leave S.74 to the jury

• The substantive test is not at fault, it is the evidential difficulty

R v Jheeta

D was worried V was going to leave him – described as ‘vulnerable’ in court. Faked burglaries, sent messages from police officers & presented himself as V’s only hope – ‘police officer’ told her to sleep with D because he would kill himself/she would get a fine

Held: this was not S.76 as the deception didn’t go to the nature (the troublesome word ‘purpose’ should be left to one side as it clouds the meaning of S.76 which is deception to the very essence of the sexual act itself) – but it vitiated consent under S.74 as it was no longer free

• Keith Laird: Jheeta is a “paradigmatic example” of a S.74 consent

• CPS recommend expert evidence of intoxication. However Ashworth argues this will not always be helpful as consent may not be vitiated into late stages of intoxication

Objective Test

R v Braham

Schizophrenic force-fed V leaves, bleached her genitals & had sexual intercourse with her. His defence was that his conception of consent was distorted by his mental state, and had some delusions of healing powers

Held: unless the state of mind amounts to insanity, it cannot be used to affect the objective test of belief in consent. A delusional belief is prima facie an unreasonable belief. This is the intention of Parliament

Hughes LJ: “beliefs in consent arising from conditions such as delusional or psychotic illness…must be judged by objective standards of reasonableness” HOWEVER he left it open for a belief based on an impaired belief to register subtle social signs (disability?) to affect the reasonableness test as it takes into account ‘all the circumstances’

S. 2 Sexual Assault by Penetration

(1)A person (A) commits an offence if—

(a)he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else,

(b)the penetration is sexual,

(c)B does not consent to the penetration, and

(d)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.

Similar gravity to S.1, used especially in cases involving transgenderism:

R v Newland

R v McNally (above)

S.3 Sexual Assault

Old Law

Under SS.14-5 Sexual Offences Act 1956 indecent assaults

R v George

D had removed a shoe for sexual pleasure

Held: no prima facie circumstances of indecency – no reasonable person would have considered it sexual

R v Court

D held a 12 yo customer V and spanked her – he admitted fetish for bottoms

Held: (HL) 3 categories of indecent assault:

Inherently decent acts

Inherently indecent acts

Acts defined by motive

This case was the 3^rd category, but they relied on an objective assessment and so it could not establish indecent assault

Tabassum (above): prima facie indecent act of groping breasts

New Law

S. 3 Sexual Offences Act

(1) A person (A) commits an offence if-

(a) he intentionally touches another person (B),

(b) the...