criminal 11 sexual offences: LLB

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1.

Sexual Offences Act 2003: 2 important offences: -rape -assault by penetration Lack of consent turns acts which would be lawful into criminal acts.

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Rape definition and AR, MR: a) penetration: vagina,anus , mouth, b) V did not consent c) D did not reasonably believe that V consented s79 confirms that penetration is a continuing act, from entry to withdrawal, so consent must be for duration. AR: penetration and V did not consent MR:intention, lack of reasonable belief that V consented. NOTE: belief must be honestly held AND reasonable

3.

lack of reasonable belief that V consented.: determined on basis of all circumstances and examination of whether D took steps to ascertain consent. Assault by penetration: AR,MR: penetration with a part of body or anything else penetration must be sexual b) V did not consent c) D did not reasonably believe that V consented NOTE only vagina , anus NOT mouth!!!, but with any object AR: penetration must be sexual, and V did not consent MR:intention, lack of reasonable belief that V consented.

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Sexual s.78: penetration, touching or any other activity if a reasonable person would consider it sexual because of circumstances or the person of any relation to it. How to determine if sexual: a) if because of nature it would be sexual (unambiguous acts e.g. penetration) b) nature of act s ambiguous e.g. doctor, we need to use the circumstances to determine if act is sexual. consent definition and application, how to approach problems? in exam: examine in order: -s76 conclusive presumption, clearly state that consent is invalid and then proceed on to the mens rea issue -s75 evidential rebuttable assess the validity of consent without reference to s.74 else s74 definition: consider the more general issue of whether consent is freely given

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Conclusive presumptions which invalidate consent which should be considered first s76. NOTE under these cases , assume that D did not to have a reasonable belief that V consented. render the consent element in both the actus reus and mens rea proved beyond reasonable doubt.: the defendant intentionally deceived the complainant as to the nature and purpose of the relevant act, or the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.

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Deception and inducing V into consent. the defendant intentionally deceived the complainant as to the nature and purpose of the relevant act. NOTE: ss.1-4, these forms of deceit render the consent element in both the actus reus and mens rea proved beyond reasonable doubt. This is significant and suggests that obtaining consent by deceit renders the offence more serious: word 'induced' has not been used in section a. This suggests that as long as a deception as to the nature or purpose of the act has taken place, it does not matter whether or not it was the deception which caused V to consent. The deception itself renders the consent invalid.

10.

evidential (rebuttable ) presumptions: circumstances: Collectively these evidential presumptions are aimed at situations where V was forced to submit to the sexual act through threats of violence towards herself or others or lacked capacity to consent because of a disability, unconsciousness or involuntary intoxication.: a. person was using violence against V or causing V to fear violence b. Violence against another c. V unlawfully detained d. V asleep or unconscious e. V physically disable cannot voice non consent f. use of drugs

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What common law issues did SOA seek to clarify?: Was it different to mere submission? Did V have to communicate her positive consent, or could it be presumed from her (or his) lack of protest? Could consent given under threat or whilst intoxicated be valid?

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definition of consent: a person consents if he agrees by choice and has the freedom to make that choice. includes other threats : e.g. threaten to fire employee deceptions : not disclosing HIV is not relevant, but if D contracts HIV can be guilty under OAPA.

13.

Section 78 of SOA, what is the test for sexual. NOTE case of doctor examining which is clearly not sexual.: -whatever the circumstances or any person's purpose in relation to it, it is because of its nature sexual, (by objective moral standards, the act was obviously sexual.) or, -because of its nature it may be sexual and because of the circumstances or the purpose of any person in relation to it (or both) it is sexual. (If it is not clear whether an act is sexual by objective standards the jury may)

14.

Consent , and reasonable belief: If V is found to consent to the activity, there can be no liability and D's belief in her consent is irrelevant. If V does not consent, or if her consent is invalid for one of the reasons set out in ss.75 and 76 then there is prima facie liability and it is then essential to examine D's state of mind regarding V's consent.

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Deception as to identity: the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person.: attempt to impersonate V's husband or long-term partner would invalidate consent. SOA goes further. by referring to impersonation of any person known personally to V. must impersonate: other traits invalid. must be a causal link because of word induced.

16.

Evidential presumptions, as opposed to conclusive presumptions, are rebuttable. This means that D can raise, in his defence, evidence that suggests that despite the circumstances, V did consent. circumstances s.75(2)? application to violence against V: if V is subjected to threats of 'violence' this may invalidate her consent but if she is subjected to threats of a different kind, for example of losing her job or of her promiscuity being publicly revealed, an evidential presumption would not exist.

17.

General definition of consent s74: For the purposes of this Act a person consents if he agrees by choice, and has the freedom and capacity to make that choice.: it emphasises freedom and capacity of the victim to choose whether to consent or not. This general definition should be considered only where s.75 and 76 do not apply (since they already invalidate consent in specific circumstances where V is deemed not to have freely chosen to consent).

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effect of HRA: need to ensure that the new law on sexual offences was human rights compatible. This meant balancing the due process rights of a defendant accused of an offence with the rights of a victim and the public to protection from sexual abuse and to see sexual offenders adequately punished.

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R v Ismail [2005]: The courts will make no distinction between types of penetration and there is no presumption that penetration of one orifice is more serious than another R v R [1992]: declared that rape within marriage could be a criminal offence. Kaitamaki [1985]: penetration is a continuing act, from the moment of entry to the moment of withdrawal. When he realised that she objected he did not withdraw. The Privy Council held that the actus reus of rape was a continuing act, and when he realised that she did not consent (and he therefore formed the mens rea) the actus reus was still in progress and there could therefore be coincidence.

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D wishes to have sex with V. V's ex-boyfriend tells D that V likes to pretend she does not consent as it increases her sexual pleasure. D penetrates V. V, who does not consent, shouts 'No! No! No!' but D does not withdraw. Has D committed rape?: These facts are similar to the facts of Morgan. The actus reus offence is complete - there is penetration of the vagina without V's consent. However, D may claim that he believed that V was consenting, because he believed that her protests were not real in the light of what her ex-boyfriend had told him. Under the SOA 2003, the jury must decide whether this belief is reasonable, having regard to the circumstances and any steps taken by D to determine whether she consented. D did not make any attempt to ask V whether she consented or not, but would this render the belief unreasonable? Morgan was acquitted under similar circumstances because he honestly believed that V was consenting, but this would no longer suffice under the new legislation Hogan suggests D ignores V's protestations and does not take any steps to clarify whether V consents at all, this is unlikely to constitute a reasonable belief.

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considerations for consent: not necessarily always have to ask V directly 'Do you consent?' It is likely that this provision suggests that where D did take steps to ascertain whether or not V consented, these steps will be taken into account in assessing the reasonableness of D's belief in consent. The jury may also consider wider circumstances, such as D's age, mental capacity, previous relationship with V or his general sexual experience, or any other characteristic or circumstance that may affect D's ability to understand the nature and consequences of his behaviour.

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George [1956: George had a shoe fetish. He removed shoes from young girls' feet because it gave him sexual pleasure. When charged with indecent assault he claimed that removing someone's shoes was not indecent. If you apply the test in s.78 to these facts, first you must ascertain whether removing someone's shoes would be considered by a reasonable person to be inherently sexual under the first part of the test. This is unlikely. Therefore it is necessary to apply the second part of the test: in the circumstances and because of D's purpose in removing the shoes, would a reasonable person consider it to be sexual? You are a reasonable person, so what do you think? The jury in this case said that it was not and acquitted the defendant. Remember that D's motives are irrelevant - an act committed with a motive of deriving sexual pleasure may nevertheless not be sexual.

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Court [1988]: Court placed a young girl on his lap and slapped her on the buttocks. He admitted that he gained sexual pleasure from this act. Slapping a young girl on the buttocks may, in some circumstances, be an act of chastisement and it is therefore not inherently sexual under the first part of the test. In applying the second part of the test, you need to ask whether the circumstances rendered the act sexual (unlikely) or whether the defendant's purpose rendered the act sexual. As D's purpose was not chastisement but his own sexual pleasure then the test may be satisfied. The defendant in this case was convicted as his actions were deemed by the jury to be indecent.

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R v H [2005]: The defendant in H touched V's back trouser pocket and was charged with a sexual assault. Whilst this offence is not on your syllabus, this case is helpful in demonstrating how the two-part test under s.78 on the meaning of 'sexual' should be applied. First, you ask, was touching V's back trouser pocket inherently sexual? The answer is 'no' since there may be a range of non-sexual reasons for doing this. Then ask is this act inherently non-sexual? Again, the answer is 'no' as this act may be done for sexual purposes. Therefore to ascertain whether D's acts were sexual or not you need to turn to the second part of the test and the jury can consider whether the circumstances or D's purpose indicate that the act was sexual. In this case the fact that D had previous propositioned V with the words 'Do you fancy a shag?' and was lying in wait for her, suggested that D's motive in touching her trousers was indeed sexual.

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Flattery (1877) D had told V that he was performing a surgical operation on her but was in fact having sexual intercourse with her, V's consent was vitiated by the deception as to the nature of the act. compare with s.76(2)(a): similarly be a conclusive presumption that consent was invalid. However, s.76(2)(a) goes further and includes deceit as to the purpose of the act. 'quality' of the act. In these circumstances V may be aware of the nature of the act as sexual, but may be deceived as to why D is performing it. Section 76(2)(a) essentially clarifies this presumption by using the term 'purpose' rather than 'quality'.

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Jheeta [2007] PURPOSE of act: D, afraid that his relationship with V was about to end, sent V text messages telling her that he was suicidal, and warning her that in order to prevent him killing himself she must continue to have sex with him: and that if she refused, she would be arrested by the police and fined. Astonishingly she was taken in by this fraud, and on this basis unwillingly allowed their sexual relationship to continue. When the truth came out, D was charged with rape. D's defence was that V had consented to the sexual intercourse and that this consent was not vitiated as he had not deceived her as to whether the nature or the purpose of the act.

29.

Two possible interpretations of the word 'purpose' were identified in Jheeta: a narrow and a wide interpretation.: The wide interpretation of the word purpose would suggest that it means the 'reason why the sexual act took place' - so in the context of this case the 'purpose' of the sexual act would be to prevent D from killing himself or to prevent V from being arrested and fined The narrow interpretation of the word purpose would suggest that it means the 'sexual' purpose, or the purpose of sexual gratification, as opposed to the purpose of a medical examination, for example. This interpretation is so narrow it offers a meaning which really adds nothing to the word 'nature' since both the nature and purpose of the act are 'sexual'.

30.

D asks to have sex with a prostitute and agrees to pay her for the sex. In fact he has no intention of paying her and after sexual intercourse has taken place he leaves without paying. PURPOSE arguments for P: wide interpretation will be used because of s.76(2)(a) is valid then have conclusive presumption for consent AND reasonable belief. argue that V was deceived as to reason why she was consenting to sexual intercourse. believed it was for $.

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D asks to have sex with a prostitute and agrees to pay her for the sex. In fact he has no intention of paying her and after sexual intercourse has taken place he leaves without paying. PURPOSE arguments for D: Nsrrow if meaning of s.76((2)(a) is restricted there is no presumption and V's consent may vnegate liaility. argue Purpose=sexual purpose D will argue that he did not deceive V as to sexual purpose of act=> valid

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Jheeta ratio: The Court of Appeal preferred the narrow interpretation, partly for policy reasons. S.76(2) (a) should not apply widely so as to effectively presume guilt in a large number of cases. Therefore they established that the word 'purpose' in this context, means 'sexual' purpose. Note that D's conviction was upheld nevertheless, but using s.74 and the general definition of consent. Although there was no conclusive presumption against V's valid consent in this case, the Court was of the view that the amount of pressure that D put on V through his deception, sufficiently impeded her freedom to consent under s.74.

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Tabassum hree complainant women agreed to the appellant showing them how to examine their own breasts. That involved the appellant, himself, feeling the breasts of two of the women and using a stethoscope beneath the bra of the third woman. Each of the three women said that they had only consented because they thought the appellant had either medical qualifications or relevant training. He had neither.: There was no evidence of any sexual motive. He was convicted on the basis that the complainants had only consented to acts medical in nature and not to indecent behaviour, that is, there was consent to the nature of the act but not its quality.

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CONSENT: D promises V that if she agrees to have sexual intercourse with him, then he will marry her. He has no intention of marrying her. V agrees.: This is similar to the facts of Jheeta in that D is lying to V in order to convince her to consent to sexual intercourse, Applying the reasoning in Jheeta, this scenario would not fall under s.76(2)(a) since V is not deceived as to the sexual purpose of the act. There is no conclusive presumption against consent, although the pressure placed on V may affect her freedom to choose to consent under s.74.

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CONSENT: D is HIV positive and has sexual intercourse with V, but does not tell her about his HIV status.: This scenario is similar to the facts of Dica [2004] EWCA Crim 1103 and Konzani [2005] 2 Cr App R 14 (these cases are discussed further in Chapter 9 of this guide). V has not been deceived as to the nature of act in that she knew that she was having sexual intercourse. But you could argue that was she deceived as to the nature of the act in the sense that she was unaware of the risk of contracting HIV? The Court of Appeal in both cases suggested that consent to sexual intercourse must be considered separately from consent to infection. The former consent was valid as this does not fall within s.76. The consent to the latter was invalid but as it is a form of injury this gave rise to a charge of GBH under s.20 Offences Against the Person Act 1861.

36.

D derives sexual pleasure from touching women's hands. She gets a job in a beauty salon which involves performing manicures on clients.: Assuming that the act of performing a manicure on a client was considered to be sexual (according to s.78(b) SOA 2003), you then need to assess whether the clients were deceived as to the purpose of the act. You could argue that the purpose of the act for D was sexual rather than a beauty treatment and therefore their consent was invalid. Note that D may have multiple purposes for the act but deception as to the sexual purpose for an act may suffice to invalidate consent.

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Deception as to identity: Section 76(2)(b) confirms the common law position, affirmed in Elbekkay [1995] Crim LR 163, whereby an attempt to impersonate V's husband or long-term partner would invalidate consent. Section 76(2)(b) goes slightly further by referring to impersonation of any person known personally to V, which may extend beyond a husband, boyfriend or sexual partner.

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impersonation of a famous person: note that the inclusion of the words 'known personally' means that if D impersonates a famous person to whom V is attracted in order to obtain her consent to a sexual act, this would not invalidate her consent CONSENT: John met Victoria in a pub one night and they got on so well that she agreed to meet him for a drink the following week. Unbeknown to Victoria, John's twin brother, Jim, in fact goes on the date with Victoria and they have sexual intercourse at the end of the evening.: Victoria is deceived into thinking that Jim is in fact John. Is John known personally to her? She has only met him once, but they are at least acquainted. If so, Victoria's consent is conclusively presumed invalid.

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CONSENT: David, who bears a striking resemblance to a famous footballer, Shane Mooney, meets Jane at a party. Jane, who has always fancied Shane Mooney, walks up to him and begins to chat. David realises Jane has mistaken him for the footballer but does not inform her of her mistake. Jane, believing that she can sell her story to the newspapers, agrees to have sexual intercourse with David.: Jane is deceived into thinking that David is Shane Mooney. However, we can assume from the facts that Shane Mooney is not known personally to Jane and therefore, notwithstanding the deception, Jane's consent is valid. Does this seem fair? Of course, the fact that David knows she is making a mistake and does not enlighten her as to that mistake, may raise questions in relation to his mens rea - does he hold a reasonable belief that she was consenting to the sexual intercourse?

41.

Carol and Fred began emailing each other after finding each other in an internet 'chat room'. They agree to meet up but Fred sends his friend Burt instead. Carol, thinking that Burt is indeed Fred, agrees to have sex with him.: Carol is deceived into thinking that Burt is Fred. But can we say that Fred is known personally to Carol if they have never met? This is not clear from the act. The jury may have to assess the extent and length of their correspondence in order to assess whether they are known 'personally' to each other.

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CONSENT: Dawn is at a party and is already a little drunk. She starts chatting to Mike who is secretly attracted to her. Mike offers to buy her another drink. She agrees but asks for 'just an orange juice'. Mike buys her a drink but, unbeknown to Dawn, Mike asks the barman to add a double vodka to the orange juice. Dawn drinks the vodka and orange juice and later she has sexual intercourse with Mike. Dawn remembers nothing of the incident the next morning and accuses Mike of rape. Applying s.75, is Dawn's consent to sexual intercourse valid? Would your answer differ if she suspected that the drink contained vodka, but she drank it anyway?: Administering the vodka may give rise to an evidential presumption against consent by virtue of s.75(2)(f). However, the double vodka must be a substance 'capable of causing or enabling [V] to be stupefied or overpowered'. Is a double vodka capable of stupefying? On its own, possibly not. However s.75(2)(f) also requires that the jury 'have regard to the circumstances in which is was taken'. As Dawn was already a little drunk the double vodka may, in these circumstances, be a substance capable of stupefying. If Dawn suspected the vodka was in her drink, but drank it anyway, this may suggest that she consented to drinking the vodka. Administering a substance with V's consent does not, in itself, invalidate consent to sexual acts. You would then need to ask whether, under s.74, Dawn gave her consent freely, or under s.75, whether she was unconscious or asleep at the time that the sexual intercourse took place.

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EX: The courts, in trying to apply s.74 Sexual Offences Act 2003 have singularly failed to produce clear guidance on the meaning of the term 'freedom' in relation to consent.' cases: Jheeta [2007] EWCA Crim 1699 Bree [2007] EWCA Crim 804 Wright [2007] All ER (D) 267 (Nov) Doyle [2010] EWCA Crim 119

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Bree [2007] Whether a person can consent to sexual activity when intoxicated. Bree went to visit his brother. They went out for the evening with his brother's friends, including the complainant. They all drank a considerable amount of alcohol. The complainant remembered little about getting home, but once home remembers being sick and that Bree and his brother washed her hair. The complainant remembered nothing after this until regaining consciousness and finding Bree penetrating her sexually. The complainant agreed that she had not said 'no', but contended that she had never consented.: Bree accepted that the complainant was intoxicated but claimed that she was capable of consenting, had undressed herself and appeared willing. The jury convicted Bree of rape. Bree appealed on the basis that the judge had not made it clear that a person can consent to sexual activity even when intoxicated. The Court of Appeal held that "If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting... However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape."

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Wright [2007] that both had voluntarily consumed a large amount of alcohol and that sexual activity had taken place. The defendant was charged with rape. The prosecution case was that the complainant had been unconscious at the time of sexual intercourse and that the defendant had had sexual intercourse with her without her consent. The defendant denied rape and he contended that the complainant had actively consented to sexual intercourse. In: judge directed, on the issue of consent, that there was a stark choice for the jury, namely, that either the complainant had been unconscious at the time of sexual intercourse, in which case she had not consented, and the defendant had known of her unconscious state, in which case he would be guilty; or that the complainant had been affected by her own voluntarily induced intoxication, but that she had nevertheless remained capable of choosing whether or not to have intercourse, and, in drink, had agreed to do so, in which case the defendant would not be guilty. guilty

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Flattery (1877): or example, where D had told V that he was performing a surgical operation on her but was in fact having sexual intercourse with her, V's consent was vitiated by the deception as to the nature of the act. Under SOA 2003 s.76(2)(a) there would similarly be a conclusive presumption that consent was invalid., but act goes further to consider purpose.

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cases : relation SOA and common law: Kaitamaki 1985: confrmed by SOA, continuing act Morgan 1975: MR: belief needs to be honestly held, new law, belief needs to be reasonable=> partially objective test. George 1956 Court 1988 Flattery 1877, deception as to nature of act, Richardson 1998 deceit as to qualifications do not invalidate consent, unless under new law nature or purpose.

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problem with evidential presumptions, criticisms: uggests that these are rather less serious circumstances as this section gives D the opportunity to avail himself of a defence by claiming that consent was indeed freely given. Ashworth and Temkin are critical of this view. It is also difficult to imagine how a defendant might argue that despite V being unconscious through, for example, being secretly administered with a 'date rape' soporific drug, she nevertheless consented to sexual intercourse. Note also that if V is subjected to threats of 'violence' this may invalidate her consent but if she is subjected to threats of a different kind, for example of losing her job or of her promiscuity being publicly revealed,=> no presumption