Criminal Seminar 3 - Sexual Offences PDF

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Coursework notes for sexual offences...

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Alex Sharpe 1.     2.  

Justine Mcnally D was found guilty of sexual assault by penetration D was born with female genitalia, but she identified and presented as male However, she has now identified herself as female again Characterisation of her conduct as active deception is wrong Christopher Wilson D pleaded guilty for obtaining sexual intimacy by fraud D was born with female genitalia, but she identified and presented as male

Introduction  Challenges the legality and public policy interest in prosecuting transgender people for sexual offences in circumstances where they do not disclose their gender history to sexual partners in advance of sexual intimacy  2 cases above show the characterisation of non-disclosure as fraud

Sex, deception and criminalization: the background debate    

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Sexual Offences Act (SOA) expanded AR of non consent Expanded fraud to include impersonating a person known personally by V Consent obtained by fraud is vitiated Jonathan Herring: consent ought to be considered as vitiated whenever V is mistaken as to a fact, would not have consented to sexual activity had V known the truth about the fact and D knows the same (sexual autonomy) - described as preposterous - frightening in its ramifications 2 important themes - identifying the reach of criminal law and the place of moralism - dispute over the kind of harms deception in sexual contexts produce Hyman Gross: non-disclosure involves only a moral wrong with no genuine harm and should not be criminalized Herring: no moralism and insist that deception produces serious harm Harm varies based on examples, e.g. non-disclosure of HIV status, or false declaration of love Herring: right to sexual autonomy > every other right, including privacy Arguments by author - challenge characterization of non-disclosure of gender history as deceptive - contest the claim that harm arising through non-disclosure ought to be viewed as sufficient to invoke the criminal law - highlight how Herring’s arguments lends itself to attitudes of intolerance in our society

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Objections to Herring: - ontological - harm-skeptical - public policy based directed to countering homophobia/transphobia

Fraud as to the nature and purpose of the sexual act    

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Could be argued that the V in the cases above were deceived as to the nature and purpose of the sexual act Reliance on it could only be justified in relation to vaginal penetration with prosthetic device, as seen in Wilson Wilson: discrepancy between what V thought, and what actually occurred, which is inconsistent with consent Mcnally: consent was not lacking because it was only oral and digital penetration of the vagina and no discrepancy between what V had thought she was engaging in and what actually occurred Jheeta, B, Assange: s76(2)(a) does not apply and it should be applied stringently Based on these cases, non consent will prove onerous even where, unlike in transgender cases, some kind of physical discrepancy exists Devonald: permissive interpretation of ‘nature and purpose of the sexual act’, and motivation may bear down on the interpretation of what falls within the ambit of the phrase Distinguish Devonald and Mcnally, Wilson - M & W: V understood that it was for sexual gratification - M & W: no intention to humiliate as compared to D - M & W: in D, there was a mistaken identity but not in M & W as V stood before them The convictions in M & W is related to the supposed identity of D Law problematizes the gender identities of transgender - in Mcnally, where V was sickened when V found out of D’s gender history - characterisation of D as deceptive is based on a legal and broader cultural view that they are not men - Crown Court judge described Mcnally’s non disclosure as an abuse of trust and selfish and callous behaviour Coupling transgender with impersonation and fraud is to misunderstand the phenomenon of transgender and its ontology Even if it can be demonstrated that the conclusive presumption is either inapplicable or only to a certain extent, it remains that prosecutions can be justified through a claim that consent is lacking under s74

S74 and the general meaning of consent

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Courts have upheld convictions using s74 where D had obtained sex by deception (e.g. B, R(F) v DPP, Jheeta B: non-disclosure of HIV positive status was not relevant to issue of consent Assange: B goes no further than deciding that a failure to disclose HIV positive status is not of itself a relevant consideration under s74 leads to a situation where if D lies when asked about his HIV status this may be viewed as relevant consideration Mcnally: CA took the distinction between non-disclosure and ‘express deception’ to uphold D’s conviction, M was considered to have ‘expressly deceived’ Problems with that statement - common sense view, which CA assumed M was not male, but at the time of the offence M identified as male - implies that sexual nature of the acts is rendered different by active deception but not non-disclosure, it might be relevant to a legal finding of non consent but not relevant to the sexual nature of acts CA’s emphasis on ‘active deception’ implicates that non-disclosure is insufficient to vitiate consent, room for counsel to distinguish M in the future Need to actively deceive something, refraining from telling will not result in a conviction What led to CA to conclude that there was active deception in M? - M used a different surname - M and V discussed getting married and having children - M is confused over her gender identity - M said ‘put it in’ which implies his penis, deceptive but common practice among transgenders to regard their prosthetic penis as their real one - M had bought condoms after V discovered M’s gender history and CA drew the inference that M was lying about V’s knowledge Illusory nature between non-disclosure and active deception, fine line M’s usage of female pronouns in her witness statements are not directed to V and such facts have no relevance to claims of deception relating to sexual acts CA had no regard for transgender experiences and perspectives Judgment premised on the conceit that a cisgender person would not knowingly become sexually intimate with a transgender person Argument that non-disclosure of gender history rather than active deception amounts to lack of consent should be REJECTED: [but if the person knew that this would vitiate consent, does it not count as active deception?] - gender history ought not to be viewed as a material fact serving to vitiate consent opposition to this claim is that it is a material fact that sexual partners ought to know if their consent is to be considered valid argued by Herring, facts must be disclosed if material argued by author that gender history ought not to be considered as a material fact for the purposes of criminal prosecution to treat it as such cast doubts on authenticity of gender identities of transgender people, as they are not engaged in pretence and this manifests early in life which is recognized by medical community - consent ought not to be viewed as vitiated even if it is concluded that gender history is a material fact based on right to sexual autonomy

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prosecution is inappropriate because legal inconsistency, discriminatory right to sexual autonomy doesn’t trump right to privacy public policy reasons

Objection 1: legal inconsistency     

S74 is only invoked where fraud is supplemented by coercion Forms of non-disclosure that do not vitiate consent include non-disclosure of HIV status, e.g. Dica and Konzani E.g. racial or ethnic status, disability, past sexual experiences, faith do not produce legal consequences for non-disclosure Herring argued that s74 should include these items, under regulation Inconsistency and targeting of gender history points to the possibility of discrimination under Art 14 ECHR

Objection 2: right to sexual autonomy doesn’t trump right to privacy    

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Disclosure of gender history requires disclosure of personal and private info, breach of Art 8 ECHR ‘private and family life’, wide interpretation as seen in Campbell v Mirror Group Newspapers Sexual autonomy is an important right but not a trump card Only in certain situation where right to sexual autonomy > right to privacy - potential harm/actual harm of cisgender is significant - outweighs the harm to transgender people associated with disclosure Harm appears to consist of feelings of distress, as seen in M If this is not harm, then it is a further objection to criminalization Even if goal is harm minimization, the harm suffered by transgender must be balanced too, as disclosure might cause harm and trauma to them

Objection 3: public policy   

Herring allows a broad definition of non-consent to trump a public policy concern to counter racism Consent argument is not worth defending when measured against countering racism, public policy Society fails to make transphobia as dangerous as racism

Stanton Ife

Introduction   

Criminal law needs to fix the boundaries of consent, especially in sexual offences against the mentally disordered as it restricts the liberty of the accused Disincentive for people with mental disorders and also 3 rd parties, e.g. staff at care homes Consent has 2 functions - protective protects freedom of persons from wrongful interference -

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facilitative [paternalism] attempt to protect persons may actually result in harm to their interests, and if consent is properly drawn it facilitates freedom too

Williams does not point to any problem if consent has in its essentials been correctly identified and deployed in sexual offences involving mentally disordered persons What is the minimum condition for a valid consent - if low threshold, it fulfills facilitative function but not protective and vice versa - Williams argued for a low threshold to prevent men who have sex with willing but sexually innocent girls from being convicted of rape not to forbid sex for women of low intelligence S30 SOA takes in all potential sexual touching, including cuddling, the offence in general can be perpetrated by persons of either sex and victims too 4 legal tests to fix the threshold at which a severely mentally disordered person can give valid consent to sex - animal instincts test based on R v Fletcher - reasoning will test based on R v Dee - physical facts test, turning on knowledge of the physical facts of the sexual activity in question - foreseeable consequences test laid down in s30 SOA, notion of sufficient understanding of the nature and reasonably foreseeable consequences of what is being done in a specific act of sexual touching

Setting a high threshold: SOA  

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Desire to remove animal instincts test due to R v Jenkins R v Jenkins: D had sex with a woman with the mental age of 3 years old, and HL sees the need for new legislation to protect those who cannot consent, it dehumanizes a person with mental disorder Animal instincts test is insufficient to protect V S30 removed the requirement that P must prove lack of consent HL didn’t consider the function of facilitation of consent

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S30 proscribes the sexual touching of mentally disordered persons who are unable to refuse consent Main question: what is the threshold under s30? The conduct element is met by intentional touching, where the touching is sexual and the person in question cannot refuse because of a mental disorder Wide ambit, covering any form of sexual touching Serious penalties involved, up to 14 years (no penetration), life sentence (with penetration)

Refusal-incapability     

S30: replaced consent with capacity to refuse Unable to refuse: lack of capacity to choose to agree Does not mark the difference between different cases, where there is genuine care and concern and pure exploitation The purpose of protecting the vulnerable can be lost in consideration of what should be done to protect mentally disordered people 4 conditions - V is refusal incapable if he lacks sufficient understanding of the nature of what is being done sexual nature of the conduct if V does not understand what is proposed is sexual, nothing he or she does or thinks or wants can constitute capacity for consent V will understand the sexual nature of the behavior if a reasonable person would think it sexual according to s78 in the context of this condition if a reasonable person doubts if an activity is sexual, but would think it is a possibility that it is, V will need to be able to read the purposes of D and the circumstances which is challenging for V who is mentally disabled Gosling: A placed bags over B’s head for sexual gratification, which would not be apparent for a person with mental disorders it requires experience and mental capacity on the part of a mentally disordered person to discern the difference - V is refusal incapable if he lacks sufficient understanding of the reasonably foreseeable consequence of what is being done consequences as seen by the reasonable person in sufficient measure in the context of actual sex, ‘reasonably foreseeable consequence’ must stretch to knowledge of pregnancy and what if the foetus is born, and also contraception emotional vulnerability that might come with sexual touching and s30 implies that V must have the capacity to consent to the emotional vulnerability that might result no official minimum threshold, but clear that V who does not have sufficient understanding of the nature or reasonably foreseeable consequence cannot validly consent to sexual touching

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leads to absurdity, where 2 mental impaired persons might form an attachment with one another, but in which one or both lacks some understanding above it is a criminal act

V though capable of choosing whether to agree to D’s touching is unable to communicate such a choice to D V is refusal incapable if he is unable to choose to agree for any other reason

Low threshold tests: Williams and Animal Instinct 

Williams: best test to be used is Morgan - Morgan test: B must know the physical facts and the act is sexual, and failing either, B does not consent in law - Morgan minus test: B must know the physical facts and failing such knowledge, B does not consent in law - Williams settled on the Morgan minus test

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Williams rejected Fletcher test, but based on Morgan minus test it is not clear how it is different from Fletcher test Temkin interpreted Fletcher test to be similar as Morgan minus S30: explanation of consent and threshold for capacity consent is in Morgan, couched in cognitive terms No definition of animal instincts test and Morgan minus test could well come down to the same thing as animal instincts test Key words in Fletcher test: - consent D cannot raise sexual arousal (Simester and Sullivan) must be to specific activity with person at time in location (Hale)

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animal led to vilification of the test

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instinct mixed with learning and experience stumbling block for the test as it is too complex to determine what is learned and unlearned to form a meaningful legal test

Fletcher test is not sufficient to help achieve this aim

From instinct to agency  Another route to identify something worthy of respect in humans who lack standard capacities of most  SOA: over inclusive, taking in some forms of mutually desired sexual touching  Focus on belief and also desire  Strawson criteria for agency - capable of forming belief - capable of having desires - capable of self change (movement) - capable of practical reasoning     

Need to focus on agency to understand the minimum conditions for sexual consent in the context of severe mental disorder Hobbes: freedom in terms of getting what one wants It is the input (desire of the human) that determines the choice or the consent Stanton Ife: this is what Fletcher test was really grasping at in trying to block out a minimum notion of consent, before invoking the unhelpful notion of instinct Desire for specific sexual touching is not sufficient for valid consent but necessary

Jonathan Herring – Mistaken Sex Summary: Traditional law approach is too narrow. The law is reluctant to criminalise the use of deception in sexual relationships. It does not convict sexual fraud where had the victim known the truth they would not have consented. Sexual Offences Act 2003 provides the court an opportunity to convict people for this. Two kinds of mistake accepted by traditional common law approach a) Nature of the act  William (singing teacher) - Consented to creation of air passage not sexual intercourse - Deceived as to the nature of the act b) Identity of the defendant  Elbekkay (thought it was her boyfriend) - Impersonation of regular sexual partner will invalidate consent *frauds recognised in criminal law *Rich, married, loving will not negate consent a) Linekar (did not pay prostitute) b) Papadimitropolos (marriage ceremony was not valid) c) Bolduc and Bird (pretended to be medical student to examine vaginas)(Canadian)

 All these cases: court claimed not mistaken as to identity/nature of the act Criticisms of common law 1) Meaning of the act  Spiritual union, expression of love, physical pleasure or procreative act  The law does not recognise such distinctions which are of fundamental importance for certain people 2) Defendant-based approach  Traditional: whether victim’s mistake is enough to negate consent  How it should be: whether victim understood the act she was consenting to 3) Assumption that sexual conduct is good  Should be based on mutual respect and understanding  Should not consider solely their own interests  Behave in a conscionable way with each other 4) Deceit negates free choice  Threats make the other unaware of the options/circumstances available to them  Restricting information inhibits freedom of choice as well

What should consent involve? 1) Protect the right to sexual autonomy and sexual integrity  Sexual touching carries enormous significance in societies (can be good or bad)  Promote the equality of genders  St George’s Health Care Trust v S: woman refused medical treatment - Infringed her right to bodily integrity - If her life is on the line yet consent is still necessary, we should require consent in a rich sense  Decisionmaker should be aware of the key facts involved in making the decision, able to make a choice and free from illegitimate pressure 2) Justification  Doctors: presumes consent because people normally want to be treated and doctors do what is in patients’ best interests  Sexual defendants: no reason for engaging in sexual conduct and no reason for presuming consent Summary of proposal  

Mistaken consent: mistaken to a fact (state of D’s mind) and had she known the truth she would not have consented Defence: If D did not realized that their partners would regard a particular fact as fundamental to their consent

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Reasonableness: concerns the D’s knowledge not the reasonableness for the criteria Jury to decide: how widespread was the knowledge

Fact: can be anything because consent is a subjective decision - Does not have to based on deception, just mistake as to the fact 

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Linekar: If D knows that a V consents due to a mistake and the mistake must not necessarily be caused by D, D can be convicted Only necessary to disclose everything that would make a real difference to whether consented  Konzani (HIV) - Personal autonomy must be enhanced - Consent not properly informed - Convicted

Sexual Offences Act 2003 S.76 (a) D intentionally deceived the complainant as...