Criminal Law - Sexual Offences Summary PDF

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SEXUAL OFFENCESIntroduction to problem of Consent -->  The issue of consent is fundamental to many of the sexual offences contained within the sexual Offences Act 2003. What is required is lack of consent not positive dissent.  English law does not define rape as sexual intercourse by force. It...

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SEXUAL OFFENCES Introduction to problem of Consent-->  The issue of consent is fundamental to many of the sexual offences contained within the sexual Offences Act 2003. What is required is lack of consent not positive dissent.  English law does not define rape as sexual intercourse by force. It thus absolved the victim from having to make a show of resistance.  There are higher conviction rates where violence is established--> Harris and Grace.  The defence in seeking to show that the victim did in fact consent to sexual intercourse may wish to adduce evidence, for example, of prior relationships with the defendant or with other men. o SOA 1972 s2--> gives the trial judge complete discretion as to whether general or specific past history and reputation of the victim might be introduced. o Criminal Evidence Act 1999--> has limited the judge's discretion, must satisfy certain statutory criteria in order to look into additional evidence if:  the issue is one of consent and the sexual behaviour of the complainant to which the evidence relates is alleged to have taken place at about the same time as the event which is the subject matter of the charge,  the courts might feel that a failure to admit the evidence would render the conviction unsafe.  One basis for admitting evidence or permitting cross-examination about sexual history might be where the complainant is biased against the defendant or has a motive for fabricating the evidence--> R v A (Complainant's sexual history) [2002] Lord Hope. A definition of Consent: Consent s74: a person consents if he agrees by choice, and has the freedom and capacity to make that choice. This test focuses on the mind of the victim. It is not a question of whether V ought to have felt pressurized or ought to have understood what was happening, but rather whether V in fact had sufficient understanding and freedom to be able to consent.  R v Ali: The CoA said the law should be alert to cases of exploitation and grooming where even if a vulnerable victim might prove willing to consent to sex, in fact they have been taken advantage of and have not had the freedom and capacity to consent. The two appellants Ali and Ashraf were clearly sexual predators. The girls concerned 14 and 15 years old. o In this case it was held that the victim never had actually consented to sex. This case was a credible account of someone who had been intimidated and had not given proper consent to the sexual intercourse.  The courts have also accepted that a victim who has been deceived about D's characteristics might be found to lack the capacity to consent Freedom: There is controversy whether the word should be replaced with choice. Not all sexual choices are completely freely made and yet consent may well have been given. It may be the desire to avoid the row that will follow if sex is not forthcoming.  R v Kirk (2008): V was a young woman who had run away from home. She was cold and hungry and asked D for help. He offered her 3.25 pounds if she agreed to have sex with him. She did and he gave her the money. The CoA upheld his conviction for rape. Her desperate situation meant she lacked the freedom and capacity to consent.  R (F) v FPP (2013): The allegation was that the claimant had agreed to sexual intercourse with the intervener on the basis he would not ejaculate inside her, withdrawal being their agreed form of contraception. Following penetration the suspect had informed her that he would in fact ejaculate inside her, which he did. The issue of the case was whether ejaculation without consent could transform an incident of consensual intercourse into rape?

Held: It was held that penetration was a continuing act and so consent can be withdrawn even after penetration has begun and this will transform an act that begins as consensual intercourse into rape (Levitt). The court held that possible deception about the use of the condom or in the instant case, the promise not to ejaculate, could be held to remove any purported free agreement by the complainant under s.74, thus negating consent. This would not extend to accidental ejaculations…  R v McNally (2013) --> SEE BELOW Capacity: Capacity is undefined in the Act but must relate to awareness, knowledge and understanding. However it is in the context of intoxication that the issue of capacity to consent has become a matter of concern.  R v Bree: D was charged with raping V who was drunk at the time. Held: The CoA held that on the proper construction of s74, if, through drink, V had temporarily lost her capacity to choose whether to have intercourse on the relevant occasion she was not consenting. However where V had voluntarily consumed even substantial quantities of alcohol, but nevertheless remained capable of choosing whether or not to have intercourse, and in drink agreed to do so, she was consenting… The conviction that the defendant was liable was quashed--> voluntary intoxication and consent played a vital role in this decision. Under s74 of the SOA 2003--> 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, this would be rape. However, it is possible that a person may be heavily intoxicated, having voluntarily consumed a large quantity of alcohol, and still be capable of deciding to have intercourse  R v Hysa [2007]: the victim had been drinking heavily and so could not remember saying no to sexual intercourse. Held: The evidence as to consent was not clear. The defendant was eventually convicted of rape. The jury may look to the surrounding circumstances finding consent. It is vital that each case is considered on its merits taking into account the nature of the relationship but also the circumstances of that particular incident. The CoA stressed that the issue of capacity and consent should normally be left to the jury to determine. THE PRESUMPTIONS! The new law distinguishes between two types of presumptions: those that are conclusive and those that raise an evidential presumption that consent was absent. Both types of presumptions apply not only to the issue of consent as an element of the actus reus but also apply to the question of whether the defendant had mens rea. 'Evidential Presumptions about Consent s. 75: If the prosecution can prove that the defendant did the relevant act in any of the six circumstances and that he knew of the circumstance, it will be presumed that there was no consent and that he lacked a reasonable belief in consent. 

The Where D did the relevant act, and o Any person was at the time of the relevant act or immediately before it began, using violence against V for causing V to dear that immediate violence would be used against him o As above but against another person o V was and D was not unlawfully detained at the time o V was asleep or otherwise unconscious at the time o Because of V's physical disability, V would not have been able to communicate to D whether V consented o Any person had administered to or caused to be taken by V, without V's consent, a substance which was capable of causing or enabling V to be stupefied or overpowered

IF the prosecution can prove that the defendant did the relevant act in any of the six circumstances and that he knew of the circumstance, it will be presumed that there was no consent and that he lacked a reasonable belief in consent. The defence will then be under an evidential burden to introduce sufficient evidence to raise the issue of consent or reasonable belief in consent.

s.76 (conclusive presumption): If any of the below criteria exist then it is to be conclusively presumed that the complainant did not consent to the relevant act (actus), and that the defendant did not believe that the complainant consented to the relevant act (mens--> subject to circumstances). 1. The defendant intentionally deceived the complainant as to the nature or purpose of the relevant act 2. 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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The impersonation must have induced the complainant to consent. The impersonation applies only to anyone known personally to the victim. This means it does not apply in a case where D impersonated a celebrity or adopts a fictitious persona online. Also for the second criteria of fraud, there has been no consent to the sexual intercourse, what has been consented to was the medical or surgical operation for example. o R v Jheeta (2007): FIRST CASE TO EXAMINE MEANING OF S.76(2)a--> When the truth came to light the victim claimed that she had only had intercourse with the defendant because of the texts and that she had not truly consented. On the written basis of plea that appellant undoubtedly deceived the complainant. She was not deceived as to the nature or purpose of intercourse, but deceived as to the situation in which she found herself. This was not a free choice, or consent for the purposes of the Act. Therefore the CoA held that there was no conclusive presumption in s76 of the 2003 Act, she was not deceived as to the nature or purpose of the act, but rather to the situation she found herself. However whilst lies may be deceptive and persuasive, they would rarely go to the nature or purpose of the act which in the case of rape was vaginal, oral or anal intercourse. Under s74 of the 2003 Act it was held that there was not a free choice or consent, therefore J's convictions for rape were satisfied. o The approach taken was that "mere disingenuous blandishments" or "common garden lies" will rarely go on to the nature or purpose of the act.  IS it appropriate to take a narrow approach as in Jheeta or should a broader approach be adopted? Answering this question requires one to weight two competing considerations.  (1) It may absolutely be the case that the victim would not have consented had the truth been told--> the deception operated to remove the possibility of real consent.  (2) On the other hand does a defendant in such a case deserve to be labelled a rapist? When a victim knowingly consented to the defendant's penetration will she suffer the same degree of emotional and psychological trauma as in other rape cases?  Some would agree and argue that consent is still valid and that sexual intercourse in such circumstances is not rape. HOWEVER it can be argued that consent should be understood in a "richer" sense: as full and truthful understanding of what is involved that is free from all pressures (Herring) o R v Devonald (2008): the Court of Appeal held that the defendant had deceived the victim as to the purpose of the act. Oddly, this is an instance of the deception in reverse; the victim thought that the act was for sexual purposes. While the victim would not have acted as he did had he known the truth. It was held that V had been deceived by D as to

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the purpose of the act (V thought it was to give pleasure to the young woman) in fact it was to make a recording, V had not consented to this. Section 76 SOA was construed widely Consent: it can be argued that consent should be understood in a richer sense: as full and truthful understanding of what is involved that is free from all pressures. R v B (2013): The defendant posed under different identities and threatened, over a social network, the victim unless she sent him topless photographs. The question was whether the victim was deceived as to the purpose of the act such that consent could be conclusively presumed under s 76 SOA?  Held: As s76 removed a defendant's last line of defence to a jury, it should be construed narrowly, especially as word 'purpose' is undefined in the SOA 2003, meaning that it could refer either to the defendant's purpose or the victim's purpose. Deception as to identity does not vitiate (destroy) consent. This case doubted the result in R v Devonald--> a retrial was ordered. R v McNally: M and Y developed a romantic relationship. Y considered the defendant who dressed as a boy, to be her boyfriend. Y discovered that M was not in fact biologically male. M was subsequently convicted of assault by penetration. The case for the prosecution was that Y's consent was obtained by fraudulent deception that the defendant was male and that had she known this she would not have consented to acts of vaginal penetration  Decision: on any common sense view, where the complainant is deliberately deceived by a defendant into believing that the latter is male. M chose to have sexual encounters with a boy and her preference was removed by the defendant's deception. Deception as to gender can vitiate consent. In McNally Lord Levenson suggested that the court in B did not decide that deception as to HIV status could never vitiate consent. Rather, the court had left it open as to whether consent would be negated, if for example the defendant was asked about his HIV status and actively deceived the complainant, this deception might leave the possibility of the vitiation of consent. The deliberate removal of the condom restricted the complainants capacity to make a free choice. R v Elbekkay extended the second principle to cover boyfriends as well. The new conclusive presumption applies to the impersonation of anyone known personally to the victim. While this is a broader interpretation than the old law, it would not come into operation if the defendant claimed to be Brad Pitt who was only known to the complainant through his films. The other point worth noting is that the impersonation must have induced the complainant to consent. R v Flattery: in this case the defendant induced a woman to submit to intercourse bu maintaining the deception that he was performing a surgical operation. He was convicted of rape. R v Willaims: the defendant was a singing master, had intercourse with one of his pupils aged 16. She made no resistance as she believed his claim that he was merely improving her breathing. He too was convicted. The principle upon which both cases were decided was that there had been no consent to sexual intercourse; what had been consented to was a medical or surgical operation. R v Linekar (1995): it has been generally rejected to extend the ambit of the law of rape to cases other than those involving these two types of fundamental mistake. Here the defendant deceived a prostitute into having intercourse with him by claiming (falsely) that he would pay her. Although she would not have had intercourse with him had she known the truth this was rightly, held not to be a deception as to the nature of the act. R v Tabassum: in this case the principle was expanded--> seen through the inclusion of "purpose". The victims had consented to breast examinations for what they thought

was medical research, they would have never done so had they known that the defendant was not medically qualified. IT was held that they had consented to the nature of the act but not to it's quality/purpose--> there was no real consent. Actus Reus RAPE--> The Sexual Offences Act 2003 further extended the definition of rape. As well as penile penetration of the vagina or anus penetration of the mouth by the penis is now part of the actus reus. Full sexual intercourse need nor take place for rape to occur. The slightest degree of penetration of the vagina, anus or mouth with the penis suffices. If a sexual partner revokes consent during penetration and the other aware of this does not withdraw within a reasonable time, this will be rape (SOA 2003 s.79(2)). As well as establishing penetration it must also be proved that the victim did not consent (includes male rape).  SOA 2003 s1  Non consensual Penile Penetration o No requirement of force  R v Camplin (1845): The defendant caused the 13 year old victim to become insensible after administrering significant amount of alcohol to her--> The defendant then took advantage of her state, having sexual intercourse with her  Held: did the victim consent? The answer was not, as an insensible victim was incapable of giving consent o No requirement of positive dissent  R v Malone: CoA held that "submitting to an act of sexual intercourse because of the drink she cannot physically resit, that, of course, is not consent. "What is required in the law is a lack of consent and not positive dissent". o Mere submission is not consent  R v Olugboja: a case that decided the victim had intercourse with the defendant after his companion had raped her and her friend. The CoA held that using the ordinary meaning of the word consent, the victim could not be said to have consented to sexual intercourse. The court held that there was a difference between the state of mind of real consent and that of mere submission. They drew a distinction between a case of a wife who reluctantly acquiesced to intercourse to avoid a sulking husband--> this would be consent.  Dunn LJ: "consent covers a wide range of states of mind in the context of intercourse between a man and a woman, ranging from actual desire on the one hand and reluctant acquiescence on the other. The distinction to draw between real consent on the one hand and mere submission on the other may not be easy to draw. Where it is to be drawn in a given case it is for the jury to decide.  R v K [2008]: The trial judge drew a distinction between "willing submission" and real consent. The CoA comment that the expression was not an easy one in the context and was not one that it would commend for use on other occasions, but given the rest of the judge's direction it would not have misled the jury in the instant case. Mens Rea RAPE if:  SOA 2003 s.1  The Penetration is Intentional  He does not reasonably believe C is consenting o c.f Morgan [1975]: it as held that where a defendant honestly believed the woman was consenting he could not be said to have the required mens rea for rape. This case was decided under SOA Act 1976, when recklessness bore only it's subjective meaning--> the claimant would have to prove beyond reasonable doubt that he was in fact aware of the risk of absent consent

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R v Caldwell: redefined the concept of recklessness so as to encompass a failure to consider an obvious risk and initially it seemed as if this interpretation would be applied to the mens rea of rape--> objective test to recklessness, satisfied if the reasonable person would have seen the risk to be obvious. o R v S [1985]: The D was accused of raping a 13 year old V in the back of a car. Held: It was held that if D genuinely believed that she wanted to even though he was mistaken in his belief he is not guilty. To be guilty of rape D must know the woman did not want to have sexual intercourse or was reckless as to whether she wanted it or not--> for almost 20 years the mens rea requirement was expressed as whether the defendant was reckless in the sense that he "he couldn't care less" whether the victim had consented. LAW HAS NOW BECOME THE ONE IN SOA 2003! o The question now is whether the defendant reasonably believed that the victim consented and there is no place for the concept of recklessness within this enquiry. If the factual circumstances of the case fall within either s.75 or 76 then the presumptions will operate. o HOWEVER, when considering whether the defendant reasonably believed in consent, s1(2) comes into play. It is here that the success of this claim is rather hollow, the next requirement will be looked at--> Reasonableness of D's belief is to be assessed 'in the light of circumstances' including steps taken by the D to ascertain consent. SO WHAT CIRCUMSTANCES ARE THE COURTS LIKELY TO FIND RELEVANT? o R v TS: Convictions of indecent assault and rape were unsafe, where fresh evidence relating to the psychological condition (Asperger's syndrome) of the accused at the time of the incidents could account for his belief that the complainant was a willing participant. o Many judges strongly adhere to subjectivism still, taking into account the characteristics of the individual defendant might well be a "means of ameliorating what they might perceive to be the harshness involved in the objective test" (C...