Lecture 20 - Rebuttable and Irrebuttable Presumptions PDF

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Rebuttable and Irrebuttable Presumptions...

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Lecture 20 - Rebuttable and Irrebuttable Presumptions. Having first considered the s. 74 definition of consent, we need to go onto consider the statutory presumptions on s.75 and 76. A presumption is: “a supposition that the law allows or requires to me made” (Oxford Dictionary of Law). In the relation to the offence of rape, the starting point (presumption) is that there is no consent. There are two types of presumptions – a rebuttable presumption and an irrebuttable presumption. Where you have a rebuttal presumption, the starting point will be that there was no consent from the victim but the defendant is entitled to try to persuade the jury that the presumption of no consent is wrong and that the victim did, in fact, consent. Here the burden of proof is on the defendant to prove that the victim consented. This is the first example that we have encountered in the course of the usual burden of proof – on the prosecution – being transferred to the Defendant. When considering a rebuttal presumption the jury start with the principles that V did not consent: 1. In these circumstances, there would be no consent D then calls evidence to say: 2. Despite that, in these circumstances, V did, in fact, consent. This sometimes involves D saying that D and V had an ongoing sexual relationship in which both agreed to a particular sexual practice where you would not normally expect consent – for example, there is a rebuttable presumption that you cannot consent to sexual intercourse if you are asleep. D might say that V enjoyed being awakened from sleep with sexual intercourse and that this was known and agreed between them. The rebuttal presumptions as to consent are: (a)

any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him;

(b)

Any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person;

(c) The complainant was, and the defendant was not, unlawfully detained at the time of the relevant act; (d) the complainant was asleep or otherwise unconscious at the time of the relevant act;

(e)

Because of the complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented;

(f) Any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act. These can be summarized as Where V fears violence against themselves (this includes of course where they fear the violence because they are actually being subjected to the violence) Where V fears violence against another person Violence does not have to come from D What does “violence” mean? Clearly a threat to physically hurt V but what if the threat is some other act that will have dire consequence for V – report V to police for a crime D knows she has committed? Sack from V’s job? Evict V causing V’s homelessness? Where V is unlawfully detained This will usually be clear in a case of kidnapping or unlawful imprisonment and the presumption likely to be difficult to rebut. Where V is asleep or unconscious D must know that V is asleep or unconscious. Lack of consciousness could arise from voluntary intoxication. There would then be a presumption of lack of consent but D could attempt to persuade the jury that V consented despite the drunkenness. Where V cannot communicate lack of consent because of physical disability Note this does not apply to every V under a disability. The disability must prevent the communication of consent. So a deaf person who used sign language would be able to communicate consent to a person who knew sign language but not to one who did not? How else might that person be communicating their lack of consent?

Where V cannot consent because they have been given a substance that overwhelms them This is intended to cover “date rape” drugs such as Rohypnol but also includes alcohol and any substance that will overwhelm or stupefy V. D must know that the substance will have that effect. There is no limit as to how the substance can be administered and this certainly includes where D puts a triple vodka in V’s orange juice. The substance must cause V to be stupefied or overwhelmed and for the sexual act to take place while V is stupefied or overwhelmed. So if D deliberately gets V so drunk that V passes out, and V later wakes up still drunk but more able to reason and the sexual act them takes place – D may still attempt to persuade the jury that V consented at the time of the act.

But: Bree [2007] EWCA Crim 804; [2007] 3 W.L.R. 600 If through intoxication V, although conscious, had temporarily lost her capacity to choose whether to have sex, she was not consenting (no consent within s74). However, where V was voluntarily intoxicated and remained capable of choosing whether to have sex and agreed to do so, that would not be rape. The fact V was drunk, which made her less inhibited, or that she may have regretted the actions later, do not conclusively show absence of consent. We will discuss this case in more detail in your tutorial.

An irrebuttable presumption is one where the starting point is that there was no consent from the victim but the defendant is not entitled to try to persuade the jury that it is wrong. Once the facts necessary to show the presumption are led by the prosecution, the defendant is not entitled to try to rebut them. If the jury believe the prosecution facts, D is guilty. This sets out 2 situations where a conclusive presumption will arise. If either situation is proved then absence of consent by V to the act in question and the absence of belief in consent by D are irrebuttably presumed.- i.e. D cannot claim V consented or that D believed V consented. (ie s.74 is not relevant where s.76 applies) The 2 situations: a) D intentionally deceived V as to the nature or purpose of the act b) D intentionally induced V to consent by impersonating a person known personally to V. Proof of a) or b) effectively makes D a rapist. Once one of these facts is proven, the defendant cannot answer with an argument that, despite the deception, the victim consented. Do these types of behaviour by D warrant such presumptions? (Compare s75 below) a) Deception as to nature or purpose of the act Pre-2003 Act, fraud as to the nature of the act vitiated consent. As Smith and Hogan point out the situations in modern times where V is deceived as to the nature of the act in rape, will be rare, given most people’s general awareness of what sexual intercourse is so s76 may have wider applicability to some other offences . However, the older offences to illustrate the point of deception as to the purpose of the act Linekar [1995] 2 Cr App R 49

D hired a prostitute promising to pay her £25. He did not intend to pay. Flattery (1877) 2 QBD 410 D persuaded V that what he was doing was a surgical operation Williams [1923] 1 KB 340 D persuaded V that what he was doing was essential to her singing lesson Jheeta [2007] 2 Cr App R 34 - seemed to regard these older cases as still valid under s.76 but refused to extend the scope of s.76 to circumstances where V was aware of the nature of the sexual act she was asked to engage in but where the deception was as the reason for the need for V to have intercourse with D – that he would be fined by the police and/or would commit suicide if she did not. There is no irrebuttable presumption in Jheeta. The defendant could argue that the rebuttable presumption of s.75 was rebutted. In other words, D could attempt to persuade the jury that V consented (however unlikely that was to succeed). NB Dica [2004] EWCA Crim 1103 (obiter) confirmed (ratio) in R v B [2006] EWCA Crim 2945- not revealing HIV is not fraud as to the nature of the act within s76 (nor is consent given in such circumstances invalid under s74-see above)

D induced V to consent by impersonating a person known personally to V R v Elbekkay [1995] Crim LR 163 Court of Appeal The appellant had been out drinking with a couple and they retired to the couple's flat. They continued drinking at the flat and the complainant went to bed leaving the appellant and her boyfriend in the living room. The boyfriend fell asleep on the sofa. The appellant climbed into bed with the complainant. She assumed it was her boyfriend and said, "I love you". He then started to have intercourse with her. After about 20 seconds she realised it was not her boyfriend. She punched him and cut him with a knife and then woke her boyfriend. The appellant was found guilty of rape and appealed contending she had consented to sexual intercourse. The appeal was dismissed on the basis that D had deceived V as to his identity, and pretended to be her boyfriend. Note also that deception by D as to their true gender can be a form of impersonation that can vitiate consent. See the very unusual case of McNally [2013] EWCA Crim 1051. In this case D, a girl, pretended to be a boy and deceived her girlfriend into believing this for several years. A very elaborate pretence involved D persuading V that she has a complex about her appearance, could not bear to be looked at and that V should wear a blindfold whenever they were together. While it might appear a bit unbelievable that V really believed that D was a boy, when she was a girl, D was convicted. Her sentence was reduced on appeal but her appeal on a point of law that deception as to gender is not the same as deception as to identity, failed. The Court of Appeal said that while not all deceptions would vitiate consent (for example

D pretending that they are wealthier that they are), a deception as to identify goes so centrally to V’s freedom and capacity to consent that it ought to vitiate consent. This principle of law is based on common law principles that date back to a time when it was much less possible to be certain of someone’s identify. We are now identifiable digitally in all sorts of ways. In the days before it was common for most people to have photographs of those close to them it was much easier to deceive as to identity. Note: For b) there must be a causal link between the impersonation and the giving of consent. That is that D’s impersonation induced V to consent....