#15622 - Sexual Offences Short - Criminal Law

SEXUAL OFFENCES —QUICK NOTES

RAPE

s.1 Sexual Offences Act 2003

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.

Definition:

• AR: D penetrates the vagina, anus, or mouth of the victim with his penis and the victim did not consent to the penetration.

• MR: D did not reasonably believe that V consented to the penetration.

ACTUS REUS

Who can commit rape?

• Only a man can commit rape — it requires penetration with a penis. Under s.79(3) of the SOA this includes surgically constructed penises. “References to a part of the body include references to a part surgically constructed”

• It is possible for a woman to commit other sexual offences, or to be an accessory to rape, but she cannot commit it.

• Husbands and wives: recognized in the statute that married couples can commit rape.

Who can be the victim of rape? Pretty clear from the statute that this can be a man or a woman; s.79(3) also means that a vagina can be a surgically constructed vagina.

What is penetration? Need penile penetration of the anus / mouth / vagina. Other bodily penetration doesn’t count. Penetration carries its ordinary meaning —question of fact whether it has occurred.

AR / MR coincidence: s.79(2): “penetration is a continuing act from entry to withdrawal” —if V withdraws her consent after the initial penetration, but the D does not withdraw in a reasonable period of time, this is rape. A ‘reasonable length of time’ is a question for the jury.

WHAT IS CONSENT (FOR THE PURPOSES OF THE AR)?

Questions over the V’s consent arise in two contexts in relation to rape: (i) part of the AR that V did not in fact consent; (ii) part of MR that D did not reasonably believe V consented (see below).

General definition of consent: s.74: “a person consents if he agrees by choice, and has the freedom and capacity to make that choice.”

PQ GUIDE:

1. Conclusive presumptions: deception as to the nature or purpose of the act

s.76 Conclusive presumptions

1. If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed—

1. that the complainant did not consent to the relevant act, and

2. that the defendant did not believe that the complainant consented to the relevant act.

   1. The circumstances are that:

1. D intentionally deceived the complainant as to the nature or purpose of the relevant act;

2. D intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.

These are conclusive presumptions and cannot be rebutted — if the presumption is made out the D will be guilty of rape (both the AR and MR are proved at that point).

1(a) deceived as to the nature and purpose of the act

For this to apply, the following need to be shown:

1. There must be a deception: if V is mistaken as to the nature and purpose of the act, but not because of D’s deception, the presumption does not apply (although the jury would still be able to find an absence of consent under the normal meaning). NB: the deception does not have to have caused consent; so if the V was deceived, but would have slept with D anyway, the presumption is still established (Note: although such a case would never make it to court).

2. The deception must be intentional: clear from the wording of the statute.

3. The deception must go to the nature and purpose of the act: A good example of a case where the V did not understand the nature and purpose due to D’s deception was the following, decided under the old law: Williams [1923]: a singing teacher persuaded his pupil (aged 16) to allow him to do something to improve her breathing. He proceeded to have sex with her. King’s Bench: D was convicted of rape; that she consented to the breathing technique was immaterial — that was an act of a different nature to the one performed by the D. There are three leading cases on ‘nature and purpose’ under the new law:

R v Jheeta [2007]

• Facts: D and V were in a sexual relationship. D began to send V threatening messages anonymously. D then persuaded V to let him contact the police for her. He didn’t do so, but texted her as the police and persuaded her to give him 700 for security protection. V wanted to leave D, but D (over a 4-year period) sent her messages ‘from the police’ telling her that she should have sex with him and would be liable to a fine if she did not. V (eventually) went to the police and D was convicted of rape.

• CA (Judge): s.76(2)(a) only applied to the nature and purpose of the act (i.e. intercourse); since the V had been deceived not about the nature or purpose of the act of intercourse, but about the situation in which she found herself, the conclusive presumption in section 76(2)(a) had no application. D was nevertheless guilty of rape, since there were occasions on which V had not consented under s.74.

• “s.76(2)(a) is relevant only to the comparatively rare cases where the defendant deliberately deceives the complainant about the natureor purpose of one or other form of intercourse.” No conclusive presumptions arise merely because the complainant was deceived in some way … by disingenuous blandishments of or common or garden lies by the defendant.”

R v Devonald [2008]

• Facts: D posed on the internet as a 20-year-old woman named ‘Cassey’. He set out to humiliate V —his daughter’s ex-boyfriend. Pretending to be C, he persuaded V to masturbate on the webcam and intended to post the film online. D was charged with causing a sexual activity (the masturbation) without consent, contrary to s.4 of the SOA. A key issue was whether V consented under s.76(2)(a).

• Court of Appeal (Leveson LJ): It was open to the jury to conclude that V had been deceived as to the purpose of the masturbation — V had been deceived into believing that he was indulging in sexual acts with, and for the sexual gratification of, a young woman. D “over-focused on the phrase "nature of the act" in s.76(2)(a) of the Act. Whilst the nature of the act was undoubtedly sexual, its purpose encompassed rather more than the specific purpose of sexual gratification.” Leveson accepts that the motivation of one of the parties may affect the purpose of the act.

NB: although this case concerned an offence under s.4 (causing a victim to perform a sexual act without consent) the law on consent is equally applicable to rape.

R v B [2013]

• Facts: D contacted V (his girlfriend) online, under a false name (Grant). She sent G topless photos (not realising it was D). G told V to perform sex acts for a webcam, threatening to post the pictures online. She obeyed, but told D what had happened. D later told V that he had found and killed G. D then approached V online as Chad, telling her that he had G’s photos and threatening to publish them. V eventually went to the police. Question is as to the interpretation of Devanold.

• Court of Appeal (Hallett LJ):

• ‘Purpose’ is to be given its ordinary English definition. Because there are myriad objectives for having sex, there is “a great danger in attempting any definition of the word purpose and in defining it too widely … Where, as here, a statutory provision effectively removes from an accused his only line of defence to a serious criminal charge it must be strictly construed. We respectfully adopt the approach of the court in Jheeta. If there is any conflict between the decisions in Jheeta and Devonald , we would unhesitatingly follow Jheeta . Thus, it will be a rare case in which s.76 should be applied.”

• Here D’s motive was presumed to be some form of sexual gratification — V knew that the purpose in performing sex acts for the camera was at least in part for sexual gratification. So there is “no evidence going to the issue of deceit as to his purpose.” However, a sexual offence has still been committed because there was no consent within the meaning found in s.74, because D “only complied because she was being blackmailed”

Summary of points arising from these cases:

• A deception might be relevant to consent in two ways: If it is to the nature / purpose, it will negate consent under the conclusive presumption (s.76). If not, then it could be evidence to infer that there was not consent within the general meaning (s.74). This was the case in Jeeta and B

• A deception as to a peripheral matter will not amount to a deception as to the nature / purpose. E.g. no deception as to nature / purpose if D lies about his profession. After B it will be a rare case where there is a deception as to the nature / purpose —e.g. if V knew the act was for sexual gratification, then although that D’s motives might be hidden, there will be no deception.

• Cases of deception as to the nature of the act involving sexual intercourse will be limited, it seems, to cases where V is unaware that the act is sex. In Assange v Sewdish Prosecution Authority [2011] it was held that deception as to the use of a condom was not enough to vitiate consent under nature / purpose.

1(b) deceived as to the identity of the individual

S.76(2) also creates a conclusive presumption in cases of impersonation.

• There must be an impersonation: so, in Elbekkay [1995] (decided under the old law) there would not be a conclusive presumption because V ...