Sexual Offences - Lecture notes 3 PDF

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Sexual Offences...

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Sexual Offences 1. Rape 2. Sexual Assault 3. Sexual Offences against Children – Crimnal Justice Sexual Offences Act 2017 4. Sexual Offences against Disabled Persons 5. Incest 6. Indecency Offences Alongside homicide, sexually criminal acts are some of the most serious offences known to the Irish legal system – DPP v Tiernan Antiquated idea that accusations of sexual assault by woman were “easy to make and hard to disprove” is now gone – PCC v DPP

Rape (i) s.2 Criminal Law (Rape) Act 1981 as amended by (ii) Criminal Law (Rape) (Amendment Act) 1990 s.2(1) man commits rape…with a woman…who does not consent...and he knows...or is reckless… Penalty set by: (iii) s.48 OAP 1861 (up to Life in prison)

s.2 1981 Act – Rape can ONLY be committed by a man against a woman s.4 1990 Act – parallel offence of rape where anal and/or oral penetration by person or object – gender neutrally drafted 1. Boy under 10 cannot be prosecuted on charge of rape – doli incapax – Children Act 2001 as amended by the Criminal Justice Act 2006 2. Boys 10-14 may be charged with Rape – s.6 Criminal Law (Rape) (Amendment) Act 1990

3. “Marital Exemption” Rape – R. v. Miller (1954). However abolished by s.5 1990 Act 4. RE: Post-Op Transsexuals -

The Gender Recognition Act 2015 introduced full

recognition to a transsexual’s new identity for all legal purposes including protection under rape laws. 5. S. 79(3) Sexual Offences Act (UK) says artificial body parts are the same as natural body parts – likely to be same in Ireland. Consent in Rape s.48 Criminal Law (Sexual Offences) Act 2017 (amends Criminal Law (Rape) (Amendment) Act 1990): (1) A person consents to a sexual act if he or she freely and voluntarily agrees to engage in that act. DPP v C – lack of consent is critical element R v Dee – consent requires conscious decision. If she can not give consent, a rape may occur during the following: 1. R. v. Mayers (1872) – sleeping 2. R. v Camplin (1845) – intoxicated 3. R. v. Lang (1975) – intoxicated but must be mental impairment, however: 4. R. v. Bree (2007) – unless she has lost her capacity to choose, drunken consent IS still consent. s.9 Criminal Law (Rape) (Amendment) Act 1990 states that a lack of resistance does not constitute consent. R v Olugboja – Dunn LJ held ‘there is a difference between consent and submission; every consent involves a submission, but it by no means follows that a mere submission involves consent.’ Consent by Fraud Fraud by D may negate any consent by P 1. R v. Clarence (1888) – presence of fraud not enough 2. R. v. Flattery (1877) – surgery 3. R. v. Williams (1922) – singing voice

4. R. v. Linekar (1995) – presence of fraud not enough again 5. R. v. Dica (2004) – deliberate failure to inform about HIV BUT 6. R. v. Tabussum (2000) – consent negated where medical qualification fraud. 7. R.(F) v. DPP (2013) – promise not to ejaculate insufficient – move away from Linekar 8. DPP v. C. (2001) (Irl) – not clear from this whether Linekar or R(F) would be followed in Ireland. Mens Rea of Rape s.2(1)(b) 1981 Act

- D must have known that the woman DID NOT consent or was

RECKLESS as to whether she did or not. DPP v Creighton – alerted to consent but ignored. CoA held recklessness was the same as heedless conduct. DPP v Morgan – husband and three friends – brought up idea of ‘genuine belief’ – brought into statute by s.2 1981 Act. Kaitamaki v R. – AR begins at penetration and continues s.4 Rape - offence of rape where anal and/or oral penetration by person or object – gender neutrally drafted. Criminal Justice (Victims of Crime) Act 2017 states that victims cannot be traumatized by the court process. Changes in the practices and procedure include: 1. D’s no longer have an automatic right to cross-examine the alleged victim 2. Allowing for the regulation of the use of counselling records 3. Use of pre-recorded statement by a child 4. Option of providing evidence by video-link Department of Justice Review: Review into how rape cases are handled - possibly including: 1. Advocates attending court to assist alleged victims 2. Delays in cases coming to court – more Judges 3. Further Garda specialist training

Sexual Assault Until 1990 these were common law offences of indecent assault against women and men s.2 1990 Act - 5yrs max penalty. s.37 Sex Offenders Act 2001 – 10 years /14 years(for a child) maximum sentence. Two elements which must be established to have sufficient AR for the offence: 1. Assault 2. Circumstances of Indecency Fairclough v Whipp- invitation to touch penis not assault R v Rolfe – if exposed person approaching – walking = assault / accompanying words = circumstance R v MacCormick – use of fingers Faulkner v Talbot – doesn’t have to be ‘hostile’ There were THREE categories of behaviour in an indecent assault case. 1. Inherently NOT indecent 2. Inherently IS indecent 3. Could be indecent depending on the circumstances Consent MAY be a defence to a charge of sexual assault IF two conditions are considered: 1. Age of victim 2. Nature of assault and its consequences s. 14 Criminal Justice Amendment Act 1935: 15 is minimum age for consent to sexual assault – held in DPP v WN

Aggravated Sexual Assault s.3 1990 Act – creates the offence. Offence is composed of a sexual assault WITH: 1. Serious violence 2. Threats of serious violence 3. Grave humiliation

4. Degradation or 5. Injury May be punishable with up to life imprisonment. Test of aggravation is an OBJECTIVE one. Criminal Justice (Commission of Sexual Offences) Amendment Bill 2018 adds offences and imposes minimum sentences Criminal Law (Sexual Offences) Amendment Act 2018 implements stricter penalties for repeat offenders and equalises incest penalty – passed all stages in Oireachtas 20th Feb 2019.

Children Irish law makes special provision for the protection from sexual exploitation for those whom are deemed especially vulnerable such as children. s.2 & s.3 Criminal Law (Sexual Offences) Act 2003 It is an offence to engage in a sexual act with a child under 15 and 17 respectively.

Criminal Law (Sexual Offences) Act 2017 Commenced March 2017 Part 1 (short title & commencement) Part 2 (offences re exploitation of children/grooming) Part 3 (offences re acts with “protected persons”/disabilities) Part 4 (purchase of sexual services/prostitution) Part 7 (jurisdictional - acts done outside the state with children & disabled) Part 8 (most - Miscl. PLUS new definition of CONSENT at s.48) Commenced Feb 2018 Part 5 – Sexual activity in the presence of child

Part 6 – Causing a child to watch sexual activity Part 8 – Miscellaneous: s.46 (Harassment Order) s.47 (Appeal from Order) s.51(b) (Post-Release Sup.)

Defilement of Children “Statutory Rape” Until 2006, s.1 and s.2 of the1935 Act applied: s1 pertained to girls under 15, and s2 pertained to girls under 17. They have now been superseded by s2 and s3 of the Criminal Law (Sexual Offences) Act 2006. AG (Shaughnessy) v. Ryan (1960) – to protect young girls AG v. Kearns (1949) – perception of age irrelevant Coleman v. Ireland (2006) – strictly liable CC. v. Ireland (2006) - s.1 struck down – struck down as no defence of mistake ZS v. DPP (2011) – s. 2 struck down

Criminal Law (Sexual Offences) Act 2006 Sexual Act: sexual intercourse or buggery between persons not married to each other. Sexual intercourse here is the same for that of Rape. AG v. Dermody (1956) – any penetration = sexual intercourse AG v. Kearns (1949) – precise evidence as to the child’s age will almost certainly apply to prosecutions brought under the 2006 Act MD v. Ireland (2012) – different levels of protection reflecting different levels of risk

Child Trafficking & Pornography Act 1998 much amended by 2017 Act especially Part 2 – Grooming Offences which provides: -

s.2 – a broad definition of child pornography s.4 – offence to be in charge of a child used for pornography s.5 – possession can be mere parting with possession of the material in question s.6 – possession for official purposes exemption/research

Sexual Offences Against a disabled person Irish law makes special provision for the protection from sexual exploitation for those whom are deemed especially vulnerable such as disabled persons. s.5 Criminal Law (Sexual Offences) Act 1993. Three distinct offence WERE: 1. intercourse/attempted with mentally impaired person – 10/5/3 years dependent 2. buggery/attempted with mentally impaired person – same punishments as above 3. gross indecency/attempted by male to other male – up to 2 years imprisonment. Defences – if married to mentally ill person OR D did not know or could not know that P was so afflicted. R. v. Hudson (1965) (Eng.) subjective test but all circumstances taken into account Law Reform Commission (LRC 109-2013) – recommended abolition of s.5 Criminal Law (Sexual Offences) Act 2017 Part 3 refers to protected persons and those with disabilities of a certain nature. This REPEALED the existing offence of s.5 of the Criminal Law (Sexual Offences) Act 2003 re mentally ill persons

Incest The Punishment of Incest Act 1908 Part 5 - Criminal Law (Sexual Offences) Act 2017 re:1. Incest by males & punishment

2. Breach of anonymity of either party Incest is where D has sexual intercourse with a defined blood relative – a specific offence s.1 – male with daughter/GD/sister/mother s.2 – female 17 + prohibited from relations with father/GF/brother or son P must prove that D knew that P was a blood relative as described in the Act. R. v. Carmichael (1940) – conviction quashed R. v. Ballie Smith (1977) – conviction quashed

Indecency Offences Inherent ambiguity of the term “indecency” R. v. Court (1988) – test - has D offended the social standards of modesty of “right thinking people,” yet, Knuller v. DPP (1972) – jury should be reminded they live in a pluralist society Douglas v. DPP (2013) – consideration of “causing scandals” and “injuring community morals” – court held s.18 Criminal Law (Amendment) Act 1935 was ‘hopelessly vague.” While highly subjective and undermined by Douglas, s.18 still applies

Indecent Exposure s.4 Vagrancy Act 1824 or possible also: s.18 Criminal Law Amendment Act 1935 Evans v. Ewels (1972) – exposing of “person” R. v. Farrell (1862) indecent exposure cannot be committed in private McCabe v. Donnelly (1982) standing naked at his home by front window...