Sexual Offences

Sexual Offences

1. RAPE

   • s.1 Sexual Offences Act
     • D intentionally penetrates mouth/ anus/ vagina of another person with penis, B doesn't consent and A doesn't reasonably believe B consents
     • AR
       • Penetration of VAM of another person with penis, and that person doesn't consent
       • penetration
         • Starts from entry until withdrawal, as long as MR somepoint along taht liable
         • Kaitamaki
           • Woman consented to intercourse, withdrew her consent during the act. held- rape
         • s,79(2) SOA
           • affirms iin statute that penetraion continuous act
       • Lack of consent.
         • applies to all sexual offences!
         • Oluboja
           • Under old law, consent had to be real consent, question of fact for jry
         • V can be found to have not consented
           • irrebuttable presumption s. 76
             • If it's established, it applies, conclusive
             • s.76 (1)
               • If it's proved that D did the relevant act, and any circumstances in (2) established, conclusively presumed no consent
             • S.76(2)
               • D intentionally decieved v as to the nature/ purpose of the relevant act, or D induced consent by impersonating someone known personally to V
               • B [2006]
                 • D HIV positive, had intercourse with woman but didnt tell her illness, this hadn't vitiated consent, she had consented to nature of the act jsut not surrounding circumstance, wasn't rape
               • Jheeta
                 • D practiced several deceptions to induce C into having sex. held- decieved as to the circumstances surrounding the intercourse, but not the purpose of the penetration
               • FLattery
                 • D told young girl perffomring surgical operation on her, rape. held- clear deception as to the nature of teh act, rape
               • Williams
                 • choir master case. told would improve singing, deception as to the purpose of the act
               • Green
                 • sexual activity without consent, doctor wired up men to machine, got them to masturbate to measure their fertility, infact for own gratification, held- decieved as to purpose
               • Devonald
                 • 16 year old boy, ex-gfs father, boy masturbated on webcam. hedl- deception as to purpose of sexual activity
               • Linekar
                 • Decided before the act- man told prostitute would pay for intercourse, ran off without paying. cofA held- not rape, not decieved as to nature. however- purpose- ran off without paying. purpose to makke money? jheeta confirmed it wouldn;t be rape
               • impersonation
                 • Under old law, had to be the V's husband, extended has to be personally known,  ie not pop star. INTENTIONALLY induces V into thinking he is someone else
                 • Elbekkay
                   • D had sex with V while sleepy and drunk, V believed he was her BF, CofA- held- consent based on mistaken belief that  D was husband/ other could vitiate consent
           • rebuttable presumption s.75
             • To rebut- D has to raise sufficient evidence that V did consent, must be more than speculative/ fanciable (Ciccarelli) 
             • S.75(2) (a)
               • Violemce, or causing V to fear immediate violence. Does not need to be D who does the vioelnce/ threat Violence not defined, against the person only though Immediatly, not defined, courts likely to try and stretch
             • S.75(2)(b)
               • Violence against another third person/
             • s.75(2)(c))
               • V unlawfully edtained while D no. Likely mean the same as false imprisonment
             • S,75(2) (d)
               • C asleep/ unconcoius at time. hard to rebut  
               • Ciccarelli
                 • D had sex with V while asleep, he claimed she had been flirting with him earlier in the evening. CofA held- no consent, unable to give contemperaneous consent while asleep. couldn't possibly believe she would have consented while awakr NOTE- only met 3 times, not married etc and know the parameters of what was acceptable to them 
             • S.75(2)(e)
               • C's physical disability  means would not have been able to communicate consent to D. Mental disabiltiy not covered here, covered by seperate provisino. burden on D to prove that C did consent
             • s.75(2)(f)
               • administered or caused C to take substance wihtout C's consent causing C to be stupefied/ overpowered at time of relevant act
           • general meaning of the word
             • No presumption applicable.    
             • S.74
               • Person consents if agree by choice and has freedom/ capacity to make choice
               • Lartner and Castleton
                 • Person was alseep, held rape. C only consents if they agree, not enough to say didn't object
               • Malone
                 • V so drunk unaware of what was happening to her- AR of rape. 
               • Bree
                 • V must hace ccapacity to make the choice. In all the situationf in presumptions were when V in state of of involuntariness, vulnerable or at a disadvantage. Held- where V drunk, can still consent, providing not lost cpacity to do so. held- for jury to decide whether V so drunk unable to consent
               • R v H
                 • CofA left it u[p to jury whether to convict where 16 year old V had no recollection of intercoures, up to jury to decide if 16yo alone at night would consent to sex with stranger
               • Olugboja
                 • courts likely to refer back to this issue of what is consent- question of facct for jury. test between choice and freedom= reluctant aqcuiesense (consent, don't need to desire it), or mere submission (not consent) 
               • Kirk
                 • More likely to be lack of consent where threat. less likely if promise of benefit, not taking anything away. HOWEvER here-  V 14 year old girl ran away from home, went to D who had previously abused her, he offered her £3.25 for sex. jury found no consent, mere submission
   • Rape within Marriage
     • Previous to 1995, AR was unlawful sexual consent, V someone who was not man's wife. The case of R, the HoL abandoned the rule, non-consensual intercourse with wife is RAPE. 
     • Crimina Justice and Public order acct
       • removed word unlawful from definitino of rape
       • eCHR
         • technically retrospective law, decided wasn't a breach
     • statistics
       • 54% of all rape committed by husband/ boyfriend and cohabitants, or formers
     • Sentencing issues
       • When law first passed, sentenced within marriage to lower exxtent. since 2006, made  clear it isn't a lesser vcrime 
   • Gender Specific
     • In UK, only males can rape. Australia, women can be guilty of rape. Women can be found guilty of aiding and abetting
   • Punishment
     • max life, previous penetration by objects etc max 10 years, now carries life
     • criticised
       • requirement of penis reflects male sexist view of rape, penetraion with objects is just as humiliating/ painful  Fair labelling requires it though, qualitatively different, penis- most intimate connection, rape should be reserved for penis
   • BUggery
     • Prior to SOA, rape only on women, nonconsensual anal intercourse buggery.  fair labelling- rape shouldn't be extended, about male power and agression against females However- men suffer same trauma, motivation of most rapists violence and power= same crime. 
   • MR
     • Intentional penetration, no consent or belief of consent
       • can't have reckless penetration
       • Morgan
         • Man invited friends round to have sex with wife, told them she was consenting. Recklessness bears subejctive cunningham meaning
     • Jeremy Horder
       • Questions the subjectivist of crimnal law, says rape should bne made a crime of negligence, subective approach no approporaite
     • s.1(2) sexual offenes ammendment act
       • whether belief in consent is reanaoble is to be determined having regards to all circumstances, including steps taken by D has taken to ascertain consent of C.

2. Rape of a child under 13

   • S.5 Sexual Offences Act
     • MR
       • Strict liability! No MR required
     • Rationale
       • under 13's too immature to consent, too vulnerable to engage in sexual activity, those who engage in sex with under 13's should be subject to severe criminal santions
     • Age differential?
       • Doesnt exist, applies equally to 12 year old boy and 50 year old man
       • Home secretary
         • Said no prosecution will ever be brought against two children who are under 13
         • R v G
           • 15 year old boy had sex with 12 year old girl. she had told him she was 15 and had initiated intercourse. strict liability, rape. HoL held- dind't violate art 6 presumption of innocence. Thought not disproprtionate
         • G v UK
           • appealed to ECrtHR- wide margin of authority to UK, hadn't exceeded this authority. 12 month imprisonment reduced to conditional discharge, but still convicted rapist, sex offender etc. 
         • R v S
           • 16 year olf boy, stable relationship with gril he thought was 16, found out her true age week before 13th bday, had consensual sex that she instigated, continued for 6 weeks. held- rape, 6 years. on appeal reduced to 2 years 3 months

3. Assault by pentration

   • Intentionally sexually penetrates, ,B doesn't consent and no reaonable belief in consent. Sexual- to protect doctors. same MR as rape. 
   • S.2 SOA
     • s.75 and s.76
       • presumptions also apply here
     • punishment
       • max life, same as rape, as serious byt fair labelling= label differently

4. Assault of a child under 13 by penetration

   • S.6
     • strict liability

5. Sexual Assault

   • intentional touching, which is sexual, and B doesn't consent and D doesn't reasonably believe consent
   • S.3 SOA
     • under old law was indecent assault, al;so included technical assault/ batteries Crime of negligence- reasonable belief
     • s.75 and s,76 apply
     • s.78
       • defines sexual
     • Court
       • leading case pre act, indevent assault, shop assistant spanked childs bottom, had buttock fetish. SPanking child's bottom to reasonable jury may seem disciplinary, but may be sexual due to the circumstance or  pupose! (1998)
     • George
       • indecent assault, foot fetsihs, attempted to remoce girls show in shop. under new act unlikely to lead to a conviction, reasonable person wouldn't think it was sexual 
     • Price
       • Removed girls show and stroked leg, may be sexual or in the circumstances 
     • Punishment
       • 10 years max
   • R v H
     • asked if V fancied a shag, then grabbed bum, held- sexual assault, touching can be with any part of the body, must be without consent.

6. s.7

   • Strict liaibility, punishment max 14 years
   • Sexual assault of child under 13

7. s.4

   • causing a person to engage in sexual activity without consent
   • Devenald
     • Father webcame case, liable s.4
   • Grout
     • Girl showed bra on webcame, scared, held- amounting to causing V to engage in sexual activity