#16765 - Sexual Offences - Criminal Law

Prior SOA 2003 & transition

Problems with consent

1. Lack of a definition beyond “not mere submission”

2. D could escape conviction from an unreasonable belief in V’s consent

3. Too few sexual convictions due to

   1. Decision in Morgan, where Lord Hailsham held rape to consist in having sex with a woman by force, fear or fraud

   2. Judge/jury biasess

“Genuinely” to “Reasonably”

1. D now liable for an objective failure to take due care to ascertain consent

   1. D believing that V has consented, without good justification, no longer exonerates him

   2. D must not only have reasonably believed in V’s choice to agree to the sexual activity, but also V’s capacity to consent

2. Out of step with the march of subjectivists which has led to MR for serious offences requiring a culpable state of mind rather than an objective failure

   1. However, parliament considered change carefully and clearly intended it

3. Justification

   1. Cost to D of taking reasonable steps to ascertain V’s state of mind is less than the effect on V of D’s failure to do so

1. General elements

   1. **Three possible ways for culpability

      1. D knows V does not consent

      2. D gives no thought to whether V consents

      3. D considers whether V consents, but simply does not care whether or not she does

   2. Case law

      1. D would not reasonably believe V was consenting if D was relying on information given by another – would not meet the bar of reasonable belief

   3. S.1-4 of SOA – whether a belief is reasonable is determined having regard to all circumstances, including any steps D has taken to ascertain whether V consents. Jury likely to consider –

      1. How long have D & V known each other, have they had a sexual relationship in the past, and have they discussed possibility of sexual relations?

      2. Where D has sex with V thinking V is X, or if V is asleep, did D take further step to ascertain consent?

   4. *Question is not whether reasonable person think V might be consenting, but whether V is consenting

      1. If reasonable person would conclude “I think V is consenting, but I can’t be sure” – no RBC

   5. One issue is whether the jury should take into account characteristics of D, and if so, which characteristics. Protecting the Public states – reference to what an objective third party would think; Herring – imagining a reasonable person in D’s shoes – CoA provided obiter support in R v B(MA)

2. **Intoxication and reasonably believed

   1. D’s voluntary intoxication isn’t something the jury can take into account when deciding whether belief in consent is reasonable – otherwise, open to a convenient defence for D

      1. Whitta – D climbed into a bed and digitally penetrated with V, the mother of a girl he’s with – and said that he wouldn’t have made the mistake had he been sober. CoA held that the test is simply whether a sober person could have had reasonable belief in consent, and upheld the Conviction; principle upheld in Grewal

3. **Mental disorder & reasonable belief

   1. Takes meaning in Mental Health Act – learning disability to serious personality disorder, broad term

   2. R v M(M) – D had delusional beliefs – some kind of psychosis, believing that he could cure, and that V should be having sex with him, whether she wanted to or not. Court say medical evidence couldn’t possibly have supported a finding of reasonable belief, but in obiter that there is however room for such an issue to be raised – reasonably believed looser than reasonable man test

1. A person (A) commits an offence if –

   1. he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

   2. B does not consent to the penetration, and

   3. 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

Contours of offence

1. Basic definition

   1. AR – D penetrated V, A or M of V with his penis & V did not consent to penetration (SOA s1)

   2. MR – (1) D intended to penetrate V, A or M of V, & (2) D did not reasonably believe that V consented (SOA s1)

2. Clarifications

   1. Only a man can commit rape – offence requires penetration by penis. If woman forces man to engage in sexual intercourse, it will be sexual assault

   2. A husband can rape his wife – after 1994 amendment to the SOA 1956, which put into statutory effect the HoL decision in R v R (1991!!)

   3. A man or woman can be V of rape – s.79(3) of SOA 2003 makes it clear that a surgically constructed V is included within definition of V, applying to transgender individuals

   4. Penetration – whether AR of rape is complete once penetration takes place, or it continues so long as there is penetration – relevant to AR MR coincidence rule

3. Nature of rape – what is the wrong?

   1. Sexual autonomy

      1. People have the right to decide with whom to have sexual relations – therefore harmed caused even if D has sex with an unconscious V who suffers no physical or emotional harm (Herring)

         1. Reubenfield – D’s self-determination not fulfilled if law does not allow him to sleep with V, V’s refusal to have sex with D can cause D acute suffering

            1. R1 – respect for autonomy gives us reason to leave someone alone to their self-actualisation – does not require us to fulfil everyone’s desires (Herring). Hence, the law treats rights to bodily integrity as key to this dilemma – if D has sex with V he has imposed his wishes on her body. If V refuses to have sex with D she has imposed nothing on his body and has not interfered in his rights

            2. R2 – misstates the principle of autonomy – you must not exercise autonomy in a way that unjustifiably harms another

      2. Ashworth says a sexual offence constitutes a wrong in that it invades a deeply personal zone – gaining non-consensually what can only be shared consensually

         1. Protection of the intrinsic value of personal and interpersonal goods connected to the lifestyle autonomy principle

         2. Criminal law does not ensure that people only ever make valuable, autonomy-enhancing choices in their sexual life. It is there to punish those who deprive them of a free choice over whether or not to have, or continue with sexual intercourse.

      3. **2 aspects

         1. Negative – protects individuals against invasions of sexual autonomy, by penalising those whose conduct amounts to unwanted interference

         2. Positive – ensure that the law does not penalise those engaging consensually in sexual activities

      4. Rebuttal – when describing rape, Vs tend to focus on the tangible physical and psychological harms, rather than the intangible notion of sexual autonomy

      5. Resolution – sexual autonomy certain plays a significant role, but it may not be all-encompassing in describing the wrong of sexual offences

   2. Rape as violence

      1. What motivates rape is not sexual desire but a wish to express domination over and hatred of women – Donald Dripps argued that use of force is an essential element in rape – unwanted sex as not particularly serious

         1. People generally would rather be subjected to unwanted sex than be shot or beaten – whether measured by welfare or dignity of V, unwanted sex is not as bad as violence

      2. Rebuttal – trivialises rape where there is no violence, but threats of force or deception

   3. Rape as invasion of integrity

      1. The wrong being not violence exactly, but an invasion of an embodied person

   4. Rape as moral injury

      1. Moral harm against V as a woman

      2. Joan McGregor –

         1. Rape constitutes a diminishing of the person’s worth; an expression of inferior status, and degradation

         2. Based upon our capacity for rational autonomy – each person deserves equal concern and respect (Dworkin)

   5. Radical feminist explanation

      1. All heterosexual relationships are on a continuum of subordination

         1. The unquestionable starting point has been that rape is defined as distinct from intercourse, while for women it is difficult to distinguish between the two under conditions of male dominance (MacKinnon)

         2. Much, if not all heterosexual sex can be regarded as involuntary – induced by threat of sulking, clenched fist, etc. (Robin Morgan)

4. Elements of the offence – AR

   1. Who can commit rape?

      1. Only someone with a penis can commit rape – offence requires penetration with a penis.

         1. If a woman forces a man to engage in sexual intercourse against his will this amounts to sexual assault or the offence of causing another person to perform a sexual act without consent. It is possible for a woman to be an accessory to the crime of rape – to aid, abet, counsel, or procure rape

      2. A husband can rape a wife

         1. This was clear only after the 1994 amendments to the SOA 1956, which put into stat effect the HoL decision in R v R [1991] that abolished marital rape – rejected that on marriage a wife gave irrevocable consent to sexual relations at any time during the marriage

         2. However, the fact that they are married will be relevant as an evidential matter

   2. Who can be V of rape?

      1. Both men and women can be V

      2. s 79(3) says that a surgically constructed vagina is still within the definition of a vagina. This means that a transgender woman who has undergone sex reassignment surgery can be vaginally raped

   3. What is penetration?

      1. To amount to rape the only act that is sufficient is penetration of the anus, vagina, or mouth by D’s penis

      2. Can be rape even if there is no ejaculation, and if D attempts to penetrate but fails there can be attempted rape

      3. AR of offence continues as long as...