Presumption of non-consent notes PDF

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evidential presumptions ...

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Presumption of non-consent Conclusive Presumptions (deception) Section 76 SOA 2003 This forms part of the actus reus of the offence:  

Deceptions as to the nature or purpose of the act Deception by impersonation

If either type is proven, then it is presumed that the victim did not consent. The defendant can not rebut this.

Nature or purpose 1) Must be a deception, 2) The deception must be intentional, 3) Must be a deception as to the nature or purpose of the act. Williams 1923 Cases  

Jheeta [2007] Text messages from the “police” Flattery [1877]

Evidential presumptions Section 75 SOA 2003, part of the AR If any are proven to have been in existence it is presumed B did not consent and A knew this but is open to rebut. a) b) c) d) e) f)

Use of violence or fear of violence against A Use of violence or fear of violence against another A was unlawfully detained A was asleep or otherwise unconscious Physical disability prevented A from communicating consent A substance has been administered to A which was capable of causing or enabling A to be stupefied or overpowered.

AR & MR is presumed if any circumstances are proven unless B brings evidence to rebut.

Capacity to consent.   

Children – Statutory Rape (J5) Mental disorder or learning difficulties Intoxicated – Controversial Bree [2007] – not as can consent if intoxicated.

Fear and consent. Choice must be a free one Olug Boja [1982] – not an easy line to draw. Mistaken consent R v Menally [2013] B pretended to be a boy....