Flashcards
Sexual Offences
Cards in this deck (94)
- 1Sexual Offences covered in this courseStudy three sexual offences in this course:
1) rape (s.1 SOA)
2) sexual assault (s.3 SOA)
3) causing sexual activity without consent (S.4 SOA)
but also note closely related offences of:
sexual activity with a child (s.9 SOA)
rape of a child (s.5 SOA)
sexual activity with a person with a mental disorder impeding choice (s.3 SOA)
The three main offences that the course focuses on all require the prosecution to prove that the complainant (note - NOT the "claimant") did not consent, and that is where the bulk of the work lies; in defining consent. - 2The differences in scope between the three selected offences: rapeS. 1(1) SOA provides that
A person (A) commits rape if:
a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
b) B does not consent to the penetration, and
c) A does not reasonably believe that B consents
so rape is distinctive bc it requires penetration of one of the specified orifices by a penis (if D uses anything else, then the applicable offence is "assault by penetration" under s.2 of the Act). So rape can only be perpetrated by men. Note that penetration is a continuing act: Kaitamaki v R (preserved in s.79 (2) SOA 2003) - 3The differences in scope between the three selected offences: sexual assaults.3(1) SOA provides that
(1) a person (A) commits an offence if -
(a) he intentionally touches another person (B)
(b) the touching is sexual,
(c) B does not consent to the touching, and
(d) A does not reasonably believe that B consents.
Harder to define and rape in that it is easier to recognise the penetration of the anus, mouth or vagina but what it means to perform a touching which is sexual, raises harder problems of definition.
to touch a person does require that the defendant actually acts and moves his own body to touch the other person, not enough if he invites the other person to touch him: Faulkner v Talbot [1981] decided before the SOA but still relevant. No gap in the law because in the case of victims who are minors, the problem raised in this case is resolved by s.10 SOA)
This offence can be perpetrated by woman as well as per the Interpretation Act 1978 s.6 of which provides that in all Acts of Parliament, the use of the masculine noun includes the feminine "unless the contrary intention appears" - 4The differences in scope between the three selected offences: sexual assault (2)"Touching" a person through his or her clothes suffices, even if no pressure is applied: R v H 2005
Knowing whether a touching is "sexual" can be difficult.
S.78 SOA provides that:
For the purposes of this Part, (except Section 71), penetration, touching or any other activity is sexual if a reasonable person would consider that -
(a) whatever its circumstances or any person's purpose in relation to it, it is because of its nature sexual, or
(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.
R v H 2005 is the only case law on this and only reiterates what section 78 says - 52 problems with Section 781) Assuming that there are some touching is which may be unambiguously sexual, is actually true? might say that someone stroking someone's penis/vagina/breasts is unambiguously sexual and that might appear to be right but is it? A dr may need to examine s1's penis/vagina/breasts and may well need to feel around the sensitive areas as he checks... might say not sexual assault bc Dr would typically have the consent of his patient but is it right to say that he's committing sexual assault in the first place?... and supposing he's doing an internal examination of a v young child who can't give consent bc she doesn't understand what is going on - surely we would then want to say it's not a sexual touching in the first place - court would say that such a touching is not sexual after all, but hard to see how that can really square with Section 78a which seems to assume that some touchings are by their nature sexual and we determine whether they are sexual by nature by determining what type of touching it is where it is and for how long
- 62 problems with Section 7878a tells you to exclude the motivation of the offender, it assumes we can tell the touching is sexual bc some touchings are obviously sexual but that is not always the case
2) problem with s78b - it says If you have a borderline touching (touching which may be sexual depending on whites being done) is the question then whether the defendant is seeking a sexual thrill through this touching here and now (that would clearly make it sexual) but could the defendant say well I had sexual motivations in the sense that I was expecting to get a sexual thrill later on but not yet by that particular touching? if u think abt it was pretty much the facts of H - clearly man wants to have sex with the girl quite soon but is he actually seeking sexual gratification at the moment he touched her trouser bottoms and was he expecting to get sexual gratification BY touching her trouser bottoms? court in H raised the problem and then didn't make a decision on it, court in h note that there is a separate offence in SOA under s62 - offence done with intent to commit sexual offence. - 7The differences in scope between the three selected offences: causing a person to engage in sexual activitys.4(1) SOA provides that
(1) A person (A) commits an offence if -
(a) he intentionally causes another person (B) to engage in an activity,
(b) the activity is sexual,
(c) B does not consent to engaging in the activity, and
(d) A does not reasonably believe that B consents
new offence insofar as wasn't found in the law previously - Fills in gaps in the law, enables people to be guilty of sexual offences without actually touching the person themselves so long as they cause a person to engage in sexual activity. This sexual activity can be done solo or with other people. Enables people who traffic women and force them to commit sexual activities, to be charged with sexual assault under this Section. Also enables a woman who forces a man to have sex with her, to be convicted of sexual offence -also the offence that a woman commits if she puts a gun to a man's head and forces him to have sex with her without actually touching him, a woman can't be guilty of rape and if she doesn't touch the man at all then she hasn't committed a sexual assault but s4 offence. - 8The differences in scope between the three selected offences: causing a person to engage in sexual activity continuedUnlike the previous offences, which were modelled on older offences, this offence is quite new and very broad - note that there is no requirement that the "sexual activity" itself should involve two or more people.
- 9The common element of non consentAll three offences have the same structure - it must be proved that the complainant (V) did not consent to the penetration/assault etc and that defendant did not reasonably believe that such consent had been given. So all three offences can be studied simultaneously by studying "consent" and "reasonable belief in consent". The relevant provisions in the SOA (ss.74 - 76) apply to all three offences
- 10When does the complainant "consent"?"Consent" is defined in s.74 of the Sexual Offences Act 2003 as:
an agreement by choice, by someone who had the freedom and capacity to make that choice.
1) the agreement element - the defendant must have agreed to back down
2) the defendant must have had the freedom to agree (so if there is a gun pointing to ahead than any apparent agreement by her would not count) - must have had choice in the matter
3) the defendant must have had the capacity to agree - the defender must ability understood what the sexual activity is about and the complainer must have had the capacity to say no ( so agreement bit is about whether the complainant said yes but if the complainant couldn't have possibly said no anyway then the capacity will be lacking therefore consent will still be lacking so in order for the defendant to rely on consent must be a criminal the person who also have the capacity to say no she wanted to)
defend a show that all three were satisfied in order to get off the or alternatively the compliment/prosecution need only show that one of them had not been satisfied - 11Element 1 of consent: agreement by choiceConsent must be given by the victim – that is, her "choice" to agree must be expressed in some way. Failure to resist does not, by itself, constitute a choice to agree.
R v Malone 1998
MC v Bulgaria 2005
"Agreement" can be expressed in many different ways. Especially where it is given by actions rather than by words, and then "one thing leads to another", it can be quite difficult to articulate exactly the spectrum of activities which V has meant to agree to (however, notes that "in the alternative" defendant might claim a "reasonable belief" in agreement to what he did).
Fact sensitive issue which the court can decide based on their common sense and their everyday experience. Knowledge of certain things about that individual such as health is immaterial in the context of consent for sex.
R v Ciccarrelli 2011
It is generally said that consent must be given afresh to each encounter, but prob is possible to give "indefinite" agreement (until such time as V chooses to revoke it) and this must be plausible for many couples who have an established sexual routine. - 12Element 1 of consent: agreement by choice: continued.... and if "future" agreements are possible, this might also apply where V is asleep.
s 75 (2) d SOA Allows a court to presume non-consent is the complement was asleep unconscious at the time of the sexual activity – but notice the words "allows a court to presume non-agreement", it doesn't require it to final agreement when the complainant was unconscious or sleep it simply allows it to presume a and it goes further… 75 says that the presumption is rebuttable meaning that there is something that defendant can still say it's only to be presumed that someone who is asleep or unconscious is in agreeing to sexual activity
surprise touchings by gf and bf - licence for such touching so long as the relationship has remained a healthy and sexual one - seems to be what the court are saying in ciccarrelli bc they distinguish ciccarrelli's case from an example of a couple w a long-standing relationship - 13Element 1 of consent: agreement by choice: continued 2Emphasis is solely on "agreement" to the actual physical acts which the other did. It does not matter that the two do not agree on other matters, or that V would not have agreed had she had further information about D's sexual health:
R v Linekar 1995
R v B 2006
in cases where there has been verbal agreement, it now seems possible that V might give only "conditional consent", if the condition relates to the performance of the act itself (eg agreement to sex, conditional on the use of condom). it means that if defendant understood the importance of the condition and nevertheless deliberately violates the, then he immediately offends - it is as though V never agreed at all. Arguably this is not such a radical development and is another illustration of how elastic the notion of "agreement" is - sometimes, agreement is expressed without words to wide and unspecified range of activities and sometimes it may be clearly and narrowly circumscribed.
2 authorities saying u can have conditional agreement to sexual activity:
Assange v Swedish Prosecution Authority 2011 - 14Element 1 of consent: agreement by choice: continued 3R(F) v DPP 2013
- 15Element 2 of Consent: capacity to agree by choiceThe complainant must also had the capacity to agree by choice. The word "capacity" is undefined in SOA but is defined in s.2 of the Mental Capacity Act 2005 (MCA) in terms of being able to make a decision for oneself. S3 of the Act then provides
3... a person is unable to make a decision for himself if he is unable -
(a) to understand the information relevant to the decision,
(b) to retain that information (e.g. case of the alzheimer's patient who might be able to understand the information now but might forget later)
(c) to use a way that information as part of the process of making the decision, or
(d) to communicate his decision ( whether by talking, using sign language or any other means).
strictly speaking this definition only applies to the proceedings under the Mental Capacity Act 2005 itself; but the Court of Appeal has held that similar understanding of "capacity" should "inform" the criminal court's approach to the word in SOA:
R v A(G) 2014 - 16Element 2 of Consent: capacity to agree by choice continuedBut that being said still a rough and ready process because the mental capacity act does not have in mind people consenting to sex but rather having their money transferred etc that's why it includes stuff like retaining information and weighing it - both the criminal and civil courts agree that when it comes to agreeing to sexual activities, a more rough and ready approach should be taken. both criminal cases in the field of sexual offences and civil cases decided under the mental capacity act 2005, concurs that the information typically, and we stress typically, regarded by persons of full capacity as relevant to the decision whether to consent to sexual relatively limited.
lM v LM (Capacity to consent to Sexual Relations) 2014
and is probably limited to a minimal understanding of what the sexual act involves and its potential consequences:
R v Williams 1923 - 17Element 2 of Consent: capacity to agree by choice continued 2Similarly one does not expect very careful "weighing" of information when contemplating sexual activity: [The] actual decision-making process carried out in that regard on a daily basis by persons of full capacity... is largely visceral rather than cerebral, owing more to instinct and emotion than to analysis." lM v LM
Nonetheless a person who is so suggestible that he will she will agree to anything proposed him or her, without being able to conduct his or her own decision-making process even at a "visceral" level, will still lack capacity.
In in order to have the capacity to express agreement, the defendant must have had the capacity to refuse or withdraw agreement too. This can be relevant in the case of highly intoxicated compliments. But remember that "a drunken consent, if given, is still consent".
R v Bree 2007
s. 75 SOA (2) (e) (f) section 2f s75 of SOA: Spiking drinks – administered to complaining any substance without complainant's consent, which makes him/her becomes stupefied or overpowered, any consequent sexual activity is presumed - 18Element 2 of Consent: capacity to agree by choice continued 3to be non-consensual. If the defendant administered to the C a date-waive drug and then the C can't remember anything that happened so long as we can prove that the defendant administered the drug then any consequent sexual activity is again presumed to be non-consensual. can rebut that by saying that he gave her a drug with the intention of empowering her but defendant says it didn't achieve the desired effect but she consented anyway or again, if there's advance agreement that will count but not usually the case in date waive drug situation
- 19Element 2 of Consent: capacity to agree by choice continued 4The emphasis on a "visceral" reasoning process with relatively limited information means that many children have the capacity to consent to such activity, and that it may not be possible to prove non-consensual sexual offences ( because their agreement, if given, will amount to consent). so we have special fences which will supply to those who have sexual activity with them (note then, that talk of the "age of consent" is loose and somewhat misleading): children over the age of 13 can consent to sexual activity as far as s74 is concerned, they are not rape victims. not victims of sexual assault under section 3. They are still victims but of other crimes: could be victims of sexual activity with a child under the age of 16 (s9). the sexual offence under section 9 is committed just by virtue of the sexual activity, doesn't matter whether the child does or does not consent so it is still criminal to have sexual activity with anyone under 16. can be child to child.
S5 charge - says that it's rape to have sex with a child under 13 regardless of whether the child consented or not - 20Element 2 of Consent: capacity to agree by choice continued 5And regardless whether defendant had reasonable belief and regardless whether defendant even knew the child's age. If it was other way round - e.g. a 16 yr old girl under 16 having sex with child she thought was over 13 but in fact wasn't then it would be an offence under s.8 SOA which is inciting a child to engage in sexual activity - these offences are v strict and they do sometimes apply to children.
on the strict liability nature of the s5 offence: R v G 2008 UKHL - 21"Freedom" to agreePhilosophically the hardest concept of the more, and so... The question is passed to the jury! The Act seems to embrace the previous law which are that a woman who are as much as "acquiesces" to the intercourse gives "freely" her consent; but one who merely "submits" to it does not. but it is unclear whether anyone has to be exercising any constraint on the will of V: and whether V "acquiesced" or "submitted" depends solely upon the jury's evaluation of the psychological state of V at the time of the agreement.
R v Olugboja 1982
freedom of choice = feel like u can say no w/out anything insufferable happening
"freedom of choice" does not = mere submission
reluctant acquiescence = agreeing
mere submission does not = agreeing (when u don't feel like u could say no)
It's a complainant sensitive case - subjective test, whether the V herself could have borne the consequences of saying no, whatever they might be
R v Jheeta 2007
R v C 2012
R v Kirk 2008
R v Ali 2015 - 22Reasonable belief in the other's consent: meaning of the word beliefAs well as finding non-consent, the jury must also be sure that defendant did not (wrongly but reasonably) believe that the complainant had given her "consent", within the full meaning of the term. in most cases, this should be quite easy to prove, not least because of the strictures that may be put on the term "belief". There may be some get-out for sexually awkward or inexperienced but some rational ground is required. Having had something addressing the concern of sexually optimistic like in the situation of a young lad having stereotype ideas about girls who go to nightclubs and wear short skirts and take drinks, meaning that they automatically agree to have sex. sections 1, 3 and 4 don't define the word belief. can have diff meanings - belief as in assumption or belief in stricter way ie that the person believing it has thought about the matter and has no doubts in his/her mind
R v Satnam and Kewell 1984 predates SOA - belief in consent means that D has to be sure and have no doubt in his mind that C was consenting - 23Reasonable belief in the other's consent: mistaken identityThere is a further hurdle which may apply in cases of mistaken identity (i.e. where defendant believes that the others consenting because he wrongly thinks that he or she someone else). In interesting point of construction here was raised by left unresolved in
Whitta 2006 - 24Reasonable belief in the other's consent: 3But defendant may still be liable for a non-consensual offence even if you did believe that (the right person!) had given consent - if his (wrong) belief was also an "unreasonable" one. But in respect of each of the offences in s. 1 - 4, the SOA offers only a subsection (2) by way of guidance to juries who have to decide whether any alleged mistaken belief was "reasonable":
2) whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
The courts have done little to offer any further guidance. We know only that if defendant's mistake was caused by drink or mental disorder (including personality disorder), then it will not be reasonable, if there is nothing else which might have provided grounds for the belief:
R v Fotheringham 1989
R v B 2013 - 25The practicalities of proof of non-consent and lack of reasonable beliefif the prosecution wishes to prove that the complainant did not consent, he or she will often be needed to testify to this effect. To be sure, this is not always the case, and non-agreement can often be legitimately inferred without such testimony from a host of other incriminating circumstances. some of these are listed, for the avoidance of doubt, in SOA s. 75 (a - f) which provide for rebuttable presumptions of non-consent and lack of reasonable belief in consent. these are potentially useful because if there is sufficient evidence of any of the circumstances, and that defendant knew about them, then a rape case may go to the jury even if the complainant is unable to testify. Imp to understand this is the main practical effect of s75.
Other effect = if the jury is satisfied that one of the incriminating circumstances existed and that defendant knew it ( e.g. the complainant was asleep at the time) then they must find them there was no consent, unless defendant gives cogent evidence that, despite then culminating circumstances, the complainant nonetheless did consent or that - 26The practicalities of proof of non-consent and lack of reasonable beliefhe (D) Reasonably believed this (e.g. Ciccarrelli). but note that where such evidence is held to have been given, in "rebuttal", s.75 no longer plays any part and when the matter of consent goes to the jury, the prosecution will still have to prove its absence beyond reasonable doubt.
the courts might also decide a case may go to the jury despite the lack of testimony (or despite a memory affected by amnesia) from the complainant, even if this falls outside any of the scenarios listed in s75 SOA, but this will depend on the alleged circumstances and the extent to which non-consent might naturally be inferred from them:
R v Hysa 2007 - 27The relevance of deceptionsThe emphasis in the definition of consent in s.74 is entirely on act: the complainant only has to agree to the act itself, and the surrounding circumstances are not important. But s.76 SOA adds further provisions so that deceptions about some other matters have the effect of negating consent.
Under s76, both non-consent and reasonable belief in consent will be conclusively presumed (so that the defendant is straightforwardly guilty) if
either 76(2)a the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act
Or 76(2)b the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant
Even when interpreting s.76(2)a, the emphasis is on the act: V must be deceived about its "nature or purpose", and these are to be narrowly construed. - 28s76(2)(a): "nature"R v Jheeta 2007
Assange v Swedish Prosecution Authority 2011
R v McNally 2013 - 29s76(2)(a): "purpose"this seems to now have a limited meaning - Seems to refer only to cases where defendant had a motivation/purpose to gain sexual gratification but where the c did not know about it – in most cases where person willingly agrees to a sexual act that person will presumably know or guess that the other person is expecting sexual gratification from the act so norm not an issue but there may be some cases where a sexual act is performed where the complainant is unaware of the person's sexual motivation and in those cases there is no problem saying that person is guilty of a sexual offence
R v Green 2002
R v Devonald 2008
R v B 2013 - 30s76(2)(b)There is no authority yet on the interpretation of s.76(2)(b), but one might note that the prosecution did not attempt to rely on it in McNally. This arises When the prosecution show that defendant intentionally induced a complainant consent relevant act by impersonating a person known personally to the complainant - what does that mean? it's when somebody deceives the complainant into thinking he's someone else (not anyone else but someone actually known personally to the complainant) - so if someone dressed up as the complainant's husband and has sex with them then that person would be automatically guilty under Section 76(2)(b) - twins... has to be someone known personally to the complainant that they are impersonating so people who go into nightclubs pretending to be Brad Pitt don't count
- 31The interplay between s. 74 and s. 76 SOAAssange understandable case on the basis that there was conditional agreement but court also said that supposing could regard assigned as having deceived the c about whether he would wear a condom, they said that could be a deception that also sets aside consent. but didn't we say that that the high court in assange said that deception as to condom use wouldn't affect the nature of the act? may mean act was performed in a different way but wouldn't affect the nature of the act under s 76(2)a - what they did in our sound was this, they said that you can have deceptions which destroy consent even though they don't fall under section 76, you can have certain deceptions which set aside consent under the general meaning of consent under section 74 and they thought deception as to whether a condom was used would be such a case even though it doesn't go to the nature of the act, it still obviously a matter of great importance to the victim and deception about it would set aside her agreement to the act. some people like this idea - Jonathan Herring (going mad in Dr Roger's view)
- 32The interplay between s. 74 and s. 76 SOA continuedGoes even further and even tries to argue that this explains the decision in Jheeta - Rogers thinks this is quite wrong, its true under jheeta the said there was no deception under section 76 2 a and they also said that consent was nonetheless valid under section 74 but they certainly weren't saying that jheeta was guilty under section 74 because of any deception they were clearly saying that jheeta was guilty under section 74 because of lack of freedom so herring's remark here can be ignored bc clearly wrong but nonetheless we are still left with dicta in assange that you can have to sections which destroy consent which operate under 74 but we don't know what the criteria for these deceptions are they just seem to be deceptions about really important things which would be known to make all the difference to the complainant and we don't know what the scope of this would be, is assange actually right in saying that u can have deceptions as to unspecified important things under s74 even though it's not important enough to meet the statutory test under 76
- 33The interplay between s. 74 and s. 76 SOA continued 2In McNally, It was assumed that this was right but the point wasn't decided... mcnally itself is a difficult case because insofar as the court thought that the complainant was deceived as to the nature of the act, it's properly speaking a case under section 76 2 a anyway and so they don't need to make wilderness whether they can have separate deceptions operating under section 74... question 1: is assange actually binding? rogers argues not binding and prob wrong. not binding bc we connect outcome of the case simply by reference to conditional agreement the high court in assange hold that the allegation against the complainant amounts rape and so it may do - the allegation is that it only agreed if it was performed with a condom, didn't happen therefore she never really agreed at all, that can be said to be the reason/ratio behind assange and therefore anything they say about deception is merely obiter therefore any other core is free to depart from it only when a court actually applied that same reasoning in a case where it makes all the difference does
- 34The interplay between s. 74 and s. 76 SOA continued 3it become binding precedent and that hasn't happened - rogers argued that hasn't even happened in McNally bc in McNally The court really meant say that the operative deception was under section 76 in the first place.... he could be wrong, could be that other courts will follow assange and will decide that it did form part of the ratio after war or that mcnally meant to adopt it as part of the ratio in which case we are in a v difficult decision
- 35THE INTERPLAY BETWEEN S74 AND S76 SOAWhen one reads s.74 and s.76, One might think that the two sections are supposed to be read separately. This would mean that, provided that V did, with capacity, freely agreed to sexual activity, then consent is given as far as s.74 is concerned, and that deception about some facts of circumstance could only make any difference if it is one of the deceptions listed under s.76 SOA.
However, in Assange Thomas LJ (now the Lord Chief Justice) disagreed, and how that deceptions about some very important matters relating to the sexual act might negate consent for the purposes of s.74, even if they made no difference under s.76. looking at the issue from a rather odd angle, his Lordship said:
" it would, in our view, have been extraordinary if Parliament had legislated in terms that, if conduct that was not deceptive could be taken into account for the purposes of s.74, conduct that was deceptive could not be."
this passage was assumed to be correct in R v McNally 2013. but there's no explanation why the natural construction should be so "extraordinary". - 36THE INTERPLAY BETWEEN S74 AND S76 SOAWhy would it be so odd to deal with frightened and incapacitated complainant under s.74 and to deal with deceived complainants separately and more restrictively under s.76? Besides which, if there was supposed to be scope for some deceptions to negate consent under s.74, it would be a familiar enough legislative technique to have prefaced s.76 with a word such as "without prejudice to the meaning of consent in s.74...." but no such qualification appears. yet this matters. Deciding whether s74 can legitimately be interpreted so as to negate consent where freely given agreement was procured by [any sort of] deception makes all the difference to deciding whether there is liability for rape by defendant lies to sexual partner about not having HIV (surely an important point of law). it is possible to argue that this passage in Assange was obiter, and in any event no higher court has yet needed to decide whether it is correct.
- 37Academic articlesS Gardener "Appreciating Olugboja" (1996)
A Ashworth & J Temkin "Rape, Sexual Assaults and the Problems of Consent" 2004 (summary of OSA but written before any case law on the new legislation).
V Munro "Concerning Consent: Standards of Permissibility in Sexual Relations" 2005
E Finch & V Munro "Juror Stereotypes and Blame Attribution in Rape Cases Involving Intoxicants" 2005
E Finch and V Munro "Breaking boundaries? Sexual consent in the jury room" 2006
J Rogers "The effect of "deception" in the Sexual Offences Act 2003" 2013 and "Further developments under the Sexual Offences Act" 2013
J Spencer "Sex by Deception" 2013
J McEwan "I thought she consented: Defeat of the Rape Shield or the Defence that should not run?" 2006
J Spencer "The Sexual Offences Act 2003: Child and Family Offences" 2004
J Temkin "Prosecuting and Defending Rape: Perspectives from the Bar" (2000) - 38Faulkner v Talbot [1981] PrinciplePrinciple: To touch a person does require that the defendant actually acts and moves his own body to touch the other person, not enough that he invites the other person to touch him.
decided before SOA but principle of this case remains relevant. in the case of victims who are minors, the problem raised in this case is resolved by s.10 SOA. - 39Faulkner v Talbot 1981 Facts???
- 40R v H 2000 Facts and PrinciplePrinciple: Touching a person through his or her clothes suffices, even if no pressure is applied
Facts: go walking on a street late at night to post a letter, chances upon weird guy who asks her for sex and she walks away quickly, guy follows her repeating requests for sex and tries to stop her running away and he grabs her trouser bottoms in attempt to pull her back towards him. They have a fight and she eventually runs away, the perpetrator is caught and prosecuted for sexual assault - one of the ways H tried to resist liability was to say that he didn't actually touch the body of the goal he only touched the trousers she was wearing as she was running away and he was trying to pull her back so he never actually touched her bum at all just her trousers. court said that touching her trousers would be enough so long as she was wearing them at the time which she clearly was, they said it didn't matter that he never touched her bottom at all touching her - 41R v H 2000 Principle 2All we have so far on the question of whether, for the purposes of consideration of D's own purposes (s78), there is a difference btwn a touching which is intended to give D instant gratification and a touching which is expected to be an immediate prelude to such a touching. R v H only reiterates what s78 says (which is in fact largely the problem) and results need of the points raised re s78
- 42R v Malone 1998 PrincipleAuthority that failure to resist does not itself constitute the choice to agree – was confirming something that had been part of the common law
agreement means the complainant must do something to Greece if the complainant looks a bit sleepy and defendant rises luck and the victim doesn't push him off and obviously defendant can't rely on the fact that she hasn't pushed him off all that matters is that the victim hasn't done anything to express agreement that is all it has to establish
this point was reaffirmed by the Strasbourg court the European Court of human rights in the case of MC v Bulgaria - 43MC v Bulgaria 2005 EHHRCase where Bulgaria was found in violation of article 3 of ECHR for not doing enough to protect rape victims. V was frozen with fear, didn't resist. police didn't take it seriously because she had resisted. MC and fam took Bulgaria to Strasbourg court and won. survey was done of criminal legal systems in other European countries and found that all of them including England, had held that lack of resistance was not enough to establish consent for rape. If agreement means that the victim has to actually express agreement and by the same token, reasonable belief of consent means that the defendant must have reasonably believed that the victim actually did something to intimate agreement so it have to point to what it was that the victim did or said that led him to believe there was consent. agreement can also be given by conduct - fact sensitive issue of what constitutes reasonable belief in consent in such cases
- 44R v Ciccarrelli 2011 Principle 1Ciccarrelli Was with a few friends around the kitchen table and they'd all been drinking a bit, ciccarrelli was with his girlfriend but he met a new girl who seem to like him bit and who according to him was playing some footsy under the table. later on, ciccarrelli and his gf take the girl back home bc she's bit drunk and need somewhere to sleep the night, ciccarrelli goes to bed with gf but gets up in the middle of the night and goes into the other girl's room, she seemed to be completely asleep so he went away but then came back and got out his penis and stroked it over her knickers, he doesn't actually penetrate her so just sexual assault. but ciccarrelli wants to claim that he reasonably believed that the complainant had agreed to what he did bc of the footsy under the table a few hours earlier; he tried to say I reasonably believe that she was inviting all sorts earlier and in his view expressed a willingness for sexual activity albeit a few hours earlier and he thought that invitation was an ongoing one and entitled him to try wake her up with a continuation skipping a
- 45R v Ciccarrelli 2011 Principle 1 continuedfew bases to much further sexual activity. Court of Appeal said the judge was right not to leave the issue of reasonable belief to the jury because no jury could possibly have found that he reasonably believes that the complainant had consented to what he actually did, even if the complainant had been expressing agreement to some sexual activity earlier with footsy movement - they were saying no reasonable person could assume that by initiating earlier sexual activity earlier in the company of other people the complainant was therefore agreeing to the defendant getting out his penis and stroking it along her knickers, that was too much of a jump from one to the other. Had the defendant simply kissed her around the neck quite a few times, then at least may have been a case to go to the jury would have to reject it but the Court of Appeal were saying that no jury could possibly have found that defendant reasonably believed that there was consent to him rubbing his penis over her knickers when all she'd done was initiate footsy under the table.
- 46R v Ciccarrelli 2011 Principle 2further point on facts of Ciccarrelli: can You have future consent in any case because not only is their big jump between playing Footsie under the table and getting ur penis out and rubbing it along another person's knickers, there is also a time gap between the footsie under the table and the further sexual activity of a few hours later; can you have consent given in advance? The instinctive answer to this would presumably be no because we always say consent must be given a fresh teacher occasion just because you leap into bed with somebody once, doesn't mean consenting to further activity – might also say that also consistent with getting rid of the marital route doctrine: may have been the case, and apparently was in Hail's time, that if a woman married a man she was apparently given consent to sex told the end of time but we got rid of that doctrine because it offensive and outdated, part and parcel of that is a recognition that today consent must be given a fascinating calendar and every occasion but is it so simple?
- 47R v Linekar 1995 Facts and PrincipleLinekar 17-year-old boy in Croydon, looking for place to have sex w prostitute but they didn't find a place so eventually he pushes her to the ground and had sex w her. prosecution said the prostitute did not consent.
judge directed jury on rape on 2 options: they could convict Linekar of rape on the grounds that they believed he pushed her and had sex without her consent. or they could convict him of rape even if the prostitute had consented to sex but only on the condition that she would be paid and Linekar did not pay her. the jury convicted her but we don't know on which basis so the defence counsel appealed to the Court of Appeal saying was possible that jury had convicted on second basis and he argued that would be wrong in law. Court of Appeal agreed that would be wrong in law, doesn't matter prostitute was wanting payment or not if she agreed to act then the agreement pointed satisfied.
R v B same effect - 48R v B 2006 Facts and Principleidea of opening the floodgates for people who have sex and then regret it
b Was charged with what might be called a straightforward rape case i.e. the complainant says she did not consent man said she did but during evidence was revealed to the jury that defendant was HIV-positive and the judge again gave the jury choice and how to consider the case he gave the impression that jury could convict the rate even if the C had agreed to sex but not knowing of the HIV condition of mr B... so similar to Linekar: again allowing jury to convict on the basis that the C didn't know something very important to her and she surely wouldn't have agreed to the sexual activity had she known about it - again court of appeal quashed the decision judge got it wrong: syllabus the woman did agree to the sexual act and the point of agreement is met, there's nothing to the point that she would probably not have agreed if she had known of the HIV condition
quite a few people have sex w some1 and regret it after - doesn't matter, to agree to sexual act with someone just have to agree to the act - 49R v B 2006 Facts and Principle continueditself Don't have to know characteristics, sexual history etc - when the complaining has been intentionally deceived by the defendant about certain of his attributes that sometimes makes a difference but the cases were talking about here linekar and B are not proper deception cases, nobody was saying that Linekar actively deceived the prostitute about payment nor that B actually deceived the C about whether he had HIV not, these are just factors which would have mattered to the victim had she known them and that's neither here nor there - where the victim is actually being deceived about points which matter, comes under deception
- 50Assange v Swedish Prosecution Authority 2011High Court challenge Swedish prosecution on various counts of rape offences under Swedish law - can only be extradited if the acts which Sweden allegedly committed an offence in England as well. Allegation against Assange was that he had consensual sex with a woman but the woman had insisted that he wear a condom, the proceeded to have sex w her not realising that he wasn't wearing one - allegation was that he either deliberately was wearing one all along that he might have been at first but took it off discreetly without noticing at some point. The complainant was adamant that she was insistent and made it very clear that she would only have sex with him with a condom... the question was with that amount to a sexual offence in English law. High Court decided that if proven that would constitute rape in English law because it would be as though the complainant never agreed to sex at all, they noted this could only be so on the basis that Mr Assange was made well aware of this condition and that it was a sine non qua condition (without this, nothing) so long as very clear
- 51Assange v Swedish Prosecution Authority 2011 continuedto Mr Assange that he has to wear a condom, That agreement is absolutely conditional upon this, no options for him; it's a steadfast, non-negotiable condition and so long as he deliberately violated the condition of the agreement i.e. deliberately didn't put condom on or deliberately took it off (wouldn't be enough if it fell off) then he could be said to have violated her conditional agreement such that her conditional agreement doesn't operate at all and therefore just becomes sex without agreement and therefore rape.
- 52R(F) v DPP 2013 Facts and PrincipleJudicial review case – failure to prosecute someone from rape. F the complainant was living with husband in not overly happy relationship but sex was consensual enough, had all the children she wanted, for medical reasons doesn't use contraceptive pills, he doesn't wear condoms the decided to withdrawal before ejaculation method but then husband got bit domineering and said he wouldn't take care to ejaculate outside her, and promptly did so.
when disclosed to the police, the CPS dispensed of the file and they said that did not constitute a case for rape but then JR started and the hike have the benefit of reading the Assange case in reconsidering the latter and the thought this case was actually following the assange case in the same way assange knew full well that there was a sine non qua condition and he could be said to be violating that condition if you did not wear condom, they thought similarly the allegation in law is that mr F knew full well that he could have penetrative sex so long as he took reasonable efforts to withdraw and if you deliberately refrain - 53R(F) v DPP 2013 Facts and Principlefrom that condition and made no effort at all indeed actually tries to ejaculate inside the woman then again you would be violating what was to be thought a clearly understood condition and so the court said that the allegation put by the wife could amount to an allegation of rape in law and therefore CPS had to reconsider whether to prosecute or not...
- 54R v A (G) 2014Court of Appeal said common law definition of capacity in SOA s74 can be informed by definition of capacity in the Mental Capacity Act 2005.
But that being said, still a rough and ready process because the mental capacity act does not have a mind people consenting to sex but rather having their money transferred etc that's why it includes stuff like retaining information and weighing it - both the criminal and civil courts agree that when it comes to agreeing to such activities, more rough and ready approach should be taken e.g. in the case of lM v LM ( capacity to consent to sexual relations) 2014 - 55lM v LM (Capacity to consent to Sexual Relations) 2014Court said that when a person must be able to understand the information relevant to the decision they say although that may require quite a lot if you have to understand the decision to agree to medical treatment, it does not mean very much in terms of sexual activity: it simply means have to understand broadly what the sexual act involves nothing more than that is required…
In particular, the courts are keen to say that we must require more of people who may be mentally disadvantaged then we would require people who are not mentally disadvantaged because people are generally assumed to have capacity to agree to sex without knowing very much about it i.e. the schoolgirl who believes you can't get pregnant standing up may not be very well informed but she undoubtedly still has capacity to agree to sex you wouldn't demand any more of a mentally incapacitated patient – the sort of information about sex one needs in order to have capacity to agree to sexual act probably means nothing more than understanding the sort of invasive at the other person is going to do and perhaps - 56lM v LM (Capacity to Consent to Sexual Relations) 2014 continuedTo understand that the other person wants to do for sexual gratification. if one can grasp that than one probably knows all the information one needs to know to decide whether or not to agree to sex, seems to always have been the case: R v Williams 1923
- 57R v Williams 1923Williams was a choir master. He had sex with a school girl in a choir Promising that it would improve her singing voice. The girl believed this. it was held that Williams was guilty of rape. In the time in which this was decided one can see this being a realistic decision the girl had been told anything abt sex she really believed the sexual activity would improve her singing voice, she didn't really understand what the sexual activity was, didn't understand that he was doing it primarily for his sexual gratification so one does have to know that but prob doesn't have to know much more...
- 58lM v LM (Capacity to Consent to Sexual Relations) 2014 Principle 2he was doing it primarily for his sexual gratification so one does have to know that but prob doesn't have to know much more...
Also in relation to the criterion in section 3 of the mental capacity act, the ability to retain information and to use or weigh it, not very much is required of the complainant insofar as using or weighing the information, the courts have the idea that people of ordinary capacity agree to sex often on a whim or just bc they feel like having sex, they don't generally tend to weigh it v thoroughly.
"[The] actual decision-making process carried out in that regard on a daily basis by persons of full capacity ... is largely visceral rather than cerebral, owing more to instinct and emotion than to analysis." - 59R v Bree 2007Bree Was convicted of rape of drunken student – his version: student remained conscious throughout. after she vomited, she felt better and happy to have sex. complainant said she didn't remember anything but just found him on top of her. Went to court and the jury convicted but the judge misdirected the jury – he thought there was agreed on part of both parties that the complainant was asleep and unconscious throughout whereas that was the prosecution side of facts but not the defendants and the Court of Appeal was able to quash the conviction on that ground alone but they made some observations about how to deal with such cases they reminded us that if a person is still able to consent then a drunken consent is still consent but they said that in cases where the C it's barely able to remain awake or conscious then at some point a point will be reached where the complainant lacks capacity to continue to agree. This point is buttressed by s. 75(2)e and s75(2)f of the SOA.
- 60R v Olugboja 1982 PrincipleWas decided before SOA, almost certainly lives on after it.
Principle: the test for freedom is subjective – it's about whether the complainant herself felt she had a free choice and to have freedom of choice means a state of mind whereby you feel like you are able to say no without anything unsufferable happening to u this means that to be free to agree u do not have to be enthusiastic - it just means that you feel like you can put up with it, you can acquiesce to it so long as you feel you have no possible option which you could possibly tolerate then it is non-consent. in Olugboja, Lord Justice Dunn put in terms of the distinction between reluctant acquiescence and myth submission - he imagined we have a curve, said in practice people's attitude to sexual intercourse can vary between absolutely not never absolute happiness/ enthusiasm at the very top of the scale - the former is clearly non-freedom the latter is clearly freedom but where do we draw the line, he said there's a fine line to be drawn somewhere between reluctant acquiescence which is good enough - 61R v Olugboja 1982 principle continuedAnd just below this line is another sealed mind called Miss admission which is not good enough and that means the victim is not free to agree. LJ Dunn imagined as a case of reluctant acquiescence the case of a wife being pestered by her husband in a come-on-one-more-time sort of fashion and she responds I'm tired/got a headache until the husb pesters her so much that she eventually gives in - he imagines that is not enthusiasm but reluctant acquiescence, she knows she has some choice and could see no, she could just about suffer it if she were to say no, she's deciding to keep them happy as part of a strategic option but she still has freedom of choice she feels she could say no if she wanted to... miss a mission is when they feel that they couldn't say no if they wanted to and the jury has to psychoanalyse and decide what exactly is the victim's state of mind when she made the agreement. it's a complainant-sensitive test: if the victim particularly weak and vulnerable can't cope with being pressured for sex and is pressured quite intensely jury shouldn't say to themselves
- 62R v Olugboja 1982 Principle continued 2I would have held out against that man, They're supposed to decide whether the victim herself felt able to say no... the test is subjective - was it unbearable for her to say no given whatever the consequences might be
- 63R v Olugboja 1982 FactsOlugboja And his friends met some girls took them back to a deserted house, O went straight into the house and watch TV whilst his friend stayed in the car and attacked both girls and raped one of them. the friend brought back both girls to the house he left the girl he already raped with O still watching TV and the other man then took the other girl up the stairs to rape her. girl who was left with O was distressed and crying and told O what the friend had done to her. O made it clear that he wanted sex w her too but didn't offer any threats, he didn't force her he just suggested that he'd like it and that she would get her much quicker if she agreed. Effectively what happened. O was charged w rape and the case was put to the jury, O was convicted and appealed to the Court of Appeal on the grounds that the word freedom had a fixed meaning and that so long as defendant doesn't offer violence or threaten any violent then according to his argument that should mean the complainant would be free to agree if she did agree.
- 64R v Olugboja 1982 Facts continuedThe Court of Appeal rejected that Saying that the definition of agreement is as per the long line (of LJ Dunn) there is no rule of law saying that you have to threaten violence, obviously those are the easy cases to prove but is not required as a matter of law to show non-freedom, don't have to show violence or threats of violence - in this case it would have had to be shown by defendant that she had no real choice but to agree in the circumstances and so the jury was entitled to find that she was victim of rape.
That's the definition of consent that we were given pre-SOA, then we had SOA defining consent as agreement with capacity and freedom to exercise that agreement, freedom undefined in SOA - we would assume freedom still defined acc to Olugboja test, would say Parliament used a familiar word, knowing that freedom had a clear meaning in Olugboja, didn't say anything to indicate a different test was to apply so working presumption that the olugboja spirit lives on and courts have continued to refer to olugboja after SOA came into force, so it's generally assumed to be the test - 65R v Jheeta 2007 Facts and PrincipleJheeta Had a girlfriend of Muslim faith and a sexual assault and finish when she went to college the guy was concerned that is would find out about the affair. her boyfriend Jheeta was heartbroken at losing his girlfriend - one day at college his former girlfriend who still keeps in touch with jheeta, get messages from people saying she's not been a faithful Muslim and they want to be a harp will tell on her to her parents. She is very frightened so she tells Jheeta she doesn't know who sending her those mobile text messages and she says to him a pressure go to the police. jheeta says no I'll go to the police on your behalf bc they might listen to me bc I'm a man and girl agrees. the police get in touch with the girl and says ur man jheeta has got in touch with us, it seems that that you need protection and that mr jheeta is prepared to offer u protection for £1000, we think u should give him this money and so she starts paying jheeta to protect in some way. text messages keep coming and different policeman keep appearing on the scene - another place messages her saying
- 66R v Jheeta 2007 Facts and Principle continuedcan't trace the ppl who are messaging you but we think you should continue to engage mr jheeta to protect you and we think u should start having sex with him as well. then that policeman was dismissed for taking bribes and another policeman started texting the complainant and he said we think u should continue having sex w jheeta and will fine you if you don't. at some point girl realised she ought to talk to someone else about this and realised the texts had all come from jheeta all along. jheeta was originally convicted of deception and wrongly so but court of appeal upheld conviction of rape on the basis that in any event the C wasn't actually free to consent to the sex which she had with him when she was being told that she had to do it in order for jheeta to protect her, or in order to prevent him committing suicide, or prevent police fining her... she believed all this, albeit foolishly and naively so but doesn't matter - subjective test , so long as she herself thought she had no choice or couldn't bear carrying on w these threats being made to her, then mere submission.
- 67R v C 2012 Facts and principlegirl had consensual affair with her step-father when she was around 17 years old But he became very domineering and threatening. She tried to escape him by going to uni but he followed her there and threatened to kill either himself or her or any new boyfriend she might have at uni and she carried on having sex with him under the stress. C was convicted of rape, he appealed on the basis that he had no particular power over the complainant at the time, she was freer from him now that she had left the house to go to uni etc she had her own independent life but the court of appeal held the jury went out of the convict of rape because he had a domineering effect on her life from fine early age, he was still pressurising her threatening to kill the boyfriend, she may have felt vulnerable and not able to disagree to HIM, even if she felt able to decline unwanted sex from anyone else
- 68R v Kirk 2008 FactsYoung victim 14 years old left family home because of sexual abuse within the family home. she's homeless and hungry, needs something to eat. Seeks out her uncle Kirk, who works in a taxi company and she asks him for money for food he says give her the money she needs which is in his estimate £3.75 if she has sex with him, so she does. kirk charged with rape - would normally speaking be charged with sexual activity with a child bc girl was under 16 but there was a complication in this case: the underage sexual activity took place under the old law before SOA came into force and under the old law there was a time limit the cases of underage but consensual sexual activity and this time limit had expired. so in order to get kirk had to charge him w rape which had no time limit but was this rape? can we say c was free to agree? uncle was allegedly one of the abusers she was running away from in the first place, possible that makes a difference but why exactly? If she went back to Uncle Kirk bc she thought he would pay for food at least, reluctant acquiescence or mere submission?
- 69R v Kirk 2008 Facts ContinuedReluctant acquiescence if she feels she can tolerate the sex for whatever reason get the money e.g. and miss submission if she feels she can't tolerate going hungry any longer, the sex is the last thing she wants but she is only doing it because starvation is even worse - that might make it miss submission. difficult case - need to come to own opinion about it. it's conceivable to convict in these cases although a lot of prostitutes probably go into prostitution because they are absolutely desperate so maybe they are not free to consent either- this conc is possible bc if we decide complainant does not consent a defendant may still succeed if he has reasonable belief that she was consenting e.g. men who desperate prostitute has sex with think she's master of her own destiny and yet we could make kirk liable bc the c in this case is unfree to make her own decision but perhaps kirk knows it, perhaps that is the relevance of him being past abuser... could say prostitutes not free to agree so long as we have get-out in some cases of RB. Need pressure on part of defendant...?
- 70R v Ali 2015 Facts and PrincipleThe controversy seems to lie with count 5
Group of men who abused and tried to have as much sex as they could with a group of girls repeatedly, abused them, gave them drinks, tied them together. 29 year old Ali seduced 15/16 yr old girl - exact age doesn't matter bc charge is rape under section 1. she liked idea of being Ali's girlfriend though not necessarily wanted to have sex, was afraid because she thought if she didn't he would go off with another girl. Had sex with condom. continued to have sex and they eventually got more unhappy as time went on broke up. charged with rape for the first instance of sex when she felt pressure of losing a relationship - may be saying in case of v young defendants that defence can count. jury convicted of rape. court of appeal upheld that conviction. looks as if Court are allowing her to revisit the event of having sex, now regretting it and seems to be wrong. In Roger's opinion, shouldn't have been left to the jury - seems to show the law bending and bending this rule the younger the complainants are - 71R v Ali 2015 Facts and PrincipleNot entirely clear how the law should be summarised if Ali is right but perhaps we should treat it as an indulgent decision?
- 72R v Satnam and Kewell 1984 Facts and principlecase of group of men who had sex With a couple of young girls in the car, was fairly clear to the jury that girls had not really consented but the men tried to rely upon a belief in consent - before SOA a man did not have to have a reasonable belief in consent but just a belief in consent, even if stupid belief would get him off the so that's what the men were saying maybe we were stupid to believe these young girls really consented to us having sex w them in the back of car like that but still we did. the call realising stupid belief would still count as a belief bullet was To the jury To that Andy found that belief in consent meant that defendant had to be sure and have no doubt in the mind that the Cs were consenting at the time so thoughts/hopes not enough.
Principle: to believe something in the context of reasonable belief of consent in sexual offences means defendant has thought about it and eliminated all doubts from their mind - 73R v Satnam and Kewell 1984 NotesOne question which might be raised is whether this definition of belief survives the SOA - might say in Satnam and Kewell the courts were motivated to give a very strict meaning to the word belief because in those days any stupid belief would get defendant off the and only way to catch people who deserved to be guilty of rape would be to give a limited meaning to the word belief but now that SOA requires reasonable belief may be no longer any need for such strict interpretation of word belief so what authority have we after SOA that the same interpretation of word belief continues? no authority so can't answer that question. would tend to believe that the same strict interpretation does continue (in roger's opinion) NB Parliament is always assumed to legislate in full understanding of the previous law so we assume when Parliament used the word belief in SOA it was aware of the previous interpretation in sexual offences that the word belief meant D had to be sure in own mind, they still use the same word without offering any other interpretation
- 74Whitta 2006 Principlespeculative point bc not been settled in Court of Appeal but settled by lower court - Whitta did go to court of appeal but defendant was only appealing upon his sentence Not his conviction and it's the point about his conviction which is relevant and that was only really decide that concours level and Crown Court decisions do not provide binding precedents so Whitta may turn out to be wrong if Court of Appeal ever gets chance to decide the case when it's properly contested...
the construction of section 1 in Whitta was as follows: the court thought that if the defendant is to evade liability on ground of RB he has to have RB that person who he is actually having sex with is given consent, it wouldn't be enough that the person who he thinks he's having sex with someone else and that person has given consent - 75Whitta 2006 FactsWhitta Was at a party with lots of women and thought he was onto a good thing w one of them, thought he would wake her up in the middle of the night and surprise her in very invasive manner but got wrong bedroom and started having sexual intercourse with someone who had not and never had welcomed it... not imp what the charge was, what important was whether Whitta was able to rely on his RB may be cases hopeless anyway and u couldn't poss RB that just because someone was flirting with you now go that person was meaning to agree to invasive sexual activity without further ado three hours later but Crown Court judge in Whitta decided that he could rely on any RB anyway because he thought that RB was only open to the defendant where the person he did actually have sex with was the person whom he believed had given consent and that since the person Whitta had sex w was a complete stranger he never actually RB that strange have given consent earlier that day, he believed someone else had
- 76Whitta 2006 Notesif Whitta is correct then there's no opportunity for person to rely mistaken belief consent under SOA - he has to believe person he is doing sexual activity with is the person who had done Something earlier to expressly to applicable agreement
could lead to hardships in cases of minor touchings? ongoing licence in long-term relationship e.g. twin sis/bro comes into town and person makes reasonable mistake if Whitta is correct then you would be guilty of sexual thought upon that person even though you might have made a reasonable mistake - so is Whitta right or not? We don't know, hasn't been reviewed by a court which can give precedent on the matter and there are some reasons to think we don't actually need it because requirement of having a reasonable belief is strong enough hurdle as it is for most cases - 77R v Fotheringham 1989 Facts and Principlepre-dates SOA, like Satnam and Kewell Exactly what it holds today is not entirely clear. Mr F went out to party with his wife one night and they drank some alcohol, mr f got quite drunk they returned home babysitter was looking after child, mrs f went into kitchen, mr f went upstairs (not clear whether he knew mrs was in kitchen also she went upstairs) had sex with babysitter in the marital bed. claims he thought it was his wife - he is arrested by the police who are sceptical of his account and mr f said well I was a bit drunk. Question for trial judge to decide upon was whether mr f could rely upon a belief that the partner was consenting if that belief was caused by self-induced intoxication? judge thought not Court of Appeal upheld him. this was convenient in all days when defendant could evade rape charges by virtue of stupid beliefs and consent,
- 78R v Fotheringham 1989 notesin the same way that satnam and kewell tried to narrow the loophole, Fotheringham also tried to continue to narrow loophole by saying if he's going to have stupid belief it can't be cause by intoxication. rogers thinks Any belief caused by intoxication still not capable of amounting to a reasonable belief under section 1 SOA, he less sure about whether it's because it doesn't count as a belief at all which was the pre-act case whether it is a belief but it can't possibly be a reasonable one if it was caused by self-induced intoxication - emphasise point if CAUSED by intoxication: if it's a reasonable mistake the defendant might have made anyway if sober and hasn't been caused by intoxication and he might still rely on it but if it's a mistake which is made that has been caused by intoxication i.e. he was made it sober then there's some room for saying that it can't possibly be a reasonable belief.
further point: if construction in whitta is correct then doesn't matter anyway because this would be another case of the D having a mistaken belief due to mistaken identification - 79R v B 2013 Facts and PrincipleB Suffered from serious mental delusions particular he believed he had special magical healing powers and even after he was sent to prison for rape he made a name for himself inventing new type of toothpaste which you offered to other inmates which he said would give them superhuman strength. when charged with rape he tried to argue that believed partner consented, Durie disbelieved him and no evidence that his skits and mental disillusions made a diff, no actual evidence that his disillusions actually operated on him in order that he imagine consent - seems more likely that he is straightforward rapist who happens at other times to suffer from delusions - nonetheless although Court of Appeal said pointed arise for that reason the considered academic question of whether person could reasonably believe that another consent if that belief was caused by schizophrenia or mental illness - Court of Appeal said could not count so a defendant would still lack the reasonable belief.
- 80R v B 2013 notesInteresting point which depends upon the construction of the word reasonably believes because in contract and other courses come across the word reasonable.and meaning can depend on the circumstances e.g. reasonably believes could mean whether someone believes something and it was reasonable for them to have that belief and whether it was reasonable for them to have that belief might require you to consider that persons age maturity and perhaps mental competence but another interpretation of the phrase reasonably believes might be whether someone believes something in a rational reasons manner where the belief is caused by rational reasoning process which we can all recognise and applying the two different meanings can give different results - in B, Court of Appeal thought the phrase reasonably believes holds the second meaning, they went on to say that if a person does make a mistake due to rational thinking process e.g. an inexperienced person not very good at reading sexual signals and may reason albeit wrongly that he has been given dance up to do what he was doing,
- 81R v B 2013 Notes continuedThey thought such a person might still be able to please reasonable belief in certain cases so door isn't completely closed to people who are not part acting as reasonable persons might do - all that seems to be required is that they have a belief that is based on rational grounds which are capable being explained in rational manner so may still be some get-out for the sexually awkward/inexperienced
Q of nightclub scenario where the boys think that any girl that talks, flirts with them or wears short skirt is at least consenting to some sexual fumbling if not more? with the judge have to leave to the jury consideration that whether they reasonably believe that other person was consenting - following B the might so long as defendant was saying he had reasonable belief that individual had agreed by the way she accepted her drink said thank you etc - his belief might still be thought to be reasonable if he was brought up in such a laddish culture that had easy thinking but as rogers reads B he might still be able to have his reasonable belief issue at least decided by the jury, - 82R v B 2013 Notes continued 2Jury might still reject it although if they follow the B case very carefully and take the view that you can have a RB so long as your belief is a despicable national ground then maybe they should be directed to acquit if they have such a case - haven't had a case following B that explains it, B itself is a delusional person and we haven't had authority concerning the optimistic or the awkward.
- 83R v Hysa 2007 Principle and FactsGroup of men who raped a 15-year-old girl on her way back from New Year's Eve party, she was drunk the defendant had not got her drunk themselves. she was unstable on Effie and had substantial memory lapses as to what happened. the defendants when they were later traced denied having sex w her at all and then admitted it later on. the trial judge left accusation of rape to go to the jury even though the C could not remember anything that happened at all, on the basis that no doubt this complainant did consent and no doubt these men took advantage of her... Hysa and friends tried to appeal on the grounds that this was not a case which should be put to the jury since it felt outside section 75 there was no actual evidence that the complainant was unconscious, no evidence that she had been drugged and without the complainant being able to remember what happened the judge should be able to put it to the jury. but Court of Appeal upheld the judge; held he was right to leave it to the jury and resulting conviction was safe - he thought the circumstances both themselves, young
- 84R v Hysa 2007 Principle and FactsGirl only 15 found drunk roaming the streets in London probably not going to agree to sex in the back of the car with three or four different men and the judge could make inferences from the fact that the defendants had previously lied and said that they had never touched her, they thought that accommodation of all these facts which the prosecution could establish meant that it was possible for the jury to consider rape on commonsense grounds despite the lack of testimony from the complainant.... whether the complainant testified matters the another reason. The defendant might claim that he did not have a fair trial if she was available to testify but did not do so, since he would be deprived of the opportunity to cross examiner. But this is a matter better pursued in the law of evidence.
- 85R v Jheeta 2007 Principle 2Jheeta Was originally convicted on the basis of section 76(2)a that he had intentionally deceived the complainant. he of course had intentionally deceived her by making her think she was getting above the messages from the police telling her to have sex with him and telling her she would be fined otherwise, but she wasn't deceived as the nature or purpose of the sexual act - she still knew the nature of having sex with mr jheeta and still knew that Mr Jheeta's purpose would be to enjoy sex, she wasn't deceived on those points and so Jheeta said that he was wrongly convicted under section 76(2)a but the court upheld the conviction expressly by saying that they were sure the jury would have still convicted Jheeta on the grounds that the complainant wasn't free to decide whether or not to have sex with him because she felt under pressure by virtue of the text messages.
common or garden lies like I'm a firefighter not relevant - 86Assange v Swedish Prosecution Authority 2011 Principle 2The High Court thought that the deception as to whether one was wearing a condom or not also did not affect the nature/purpose of the sexual act, this is perhaps a little bit more contentious - in assange, there were two separate arguments by prosecution as to why assange's alleged activity was rape in English law: 1 conditional consent 2 argument a prosecution which case also accepted, that it could be said that Mr Assange had deceived the complainant as to whether he was wearing a condom which could be said to be a deception, they thought even so that would not be a deception as to the nature or the purpose of the act, it would still be sex after all the nature of the act would not be affected by whether or not a condom was used... rogers supposes going back to conditional agreement, the performance of the act might be different but the nature of the act might be unaffected
- 87R v McNally 201314 yr old who struck up a friendship w 13 yr old girl - mcNally from Glasgow girl from london. they communicated by phone and skype. girl invited mcnally down for her 16th birthday - mcnally refused to take trousers off so girl was naked and mcnally would give her oral and digital sex, but mcnally never penetrated girl with his penis which is what the girl was expecting. eventually realised that mcnally was a girl posing as boy. she was accused of sexual assault and assault by penetration, clearly the C Had agreed to the sexual act themselves but presumably she was deceived as the gender of the other person, does that mean that she was intentionally deceived as the neutral purpose of the sexual act - Q whether the nature of the act can be changed depending on whether it can be classified as a homosexual act or a heterosexual act? ideally court of appeal would have said yes and therefore if this mistake by the complainant was caused by intentional deception by the D which it most probably was in this case then there is a deception under 76 2 a + D automatically guilty.
- 88R v McNally 2013 Facts and PrincipleHowever, McNally is confusing bc they didn't say that this is a case where consent is negated under section 76 2 a, they seemed to treat as a case where it is absent under section 74 which is confusing - under section 74, you might a defendant did actually agree to that, the acts she agreed to were exactly the axe which happened admittedly with a female finger and a female tongue but exactly the sorts of acts she wanted what exactly the things which happened the only reason that she might consent would have been because she was deceived about the gender of the other person and if the gender of the other person affects the nature of the act, then logically consent is lacking under 76 2 a and not 74 - yet McNally has it both ways it says yes there was presumably deception and yes it did relate to the nature of the Act but the consent is lacking under Section 74 - Rogers thinks they do this bc the case starts off w foolish concession by the prosecution that this case is only concerned with section 74 and not with deceptions under 76. so court constrained to consider it under s74 but
- 89R v McNally 2013 Facts and Principle continuedtheir judgement only really makes sense if the deception operates under Section 76 2 a and say that the complainant was deliberately deceived as to the gender of the other person
in rogers' view: the court will uphold it under section 76 2 a and that will be clarified, mcnally can be used as authority that deception as to gender can amount to deception as to the nature of the act under 76 2 a - 90R v Green 2002Green Pretended to be a doctor - said she was doing research into male fertility, said he believes that men's fertility in later life may be affected by the quantity of times and the way in which they masturbate early on in life so he invited 17 year olds to masterbate saying he would pay them. he wired them up to web cams and recorded them doing it, said it was for medical reasons bc he had to see how they were doing it and said they would come back in several years and see how many children they've got.... but green turned out to be just a pervert who liked to watch boys masterbate - it was said that the boys' consent was set aside (this was before SOA but in a later case b they say that green would also be correctly decided under the new legislation) - we would say that the bogus dr was causing the boys to engage in sexual activity and it was without their consent by virtue of 76 2 b, the voice thought they were doing it for pure scientific research not to gratify lecherous old bloke - he had a motive to gain sexual gratification of which they were unaware
- 91R v Devonald 2008 FactsBoy had consensual affair with girl of 16 but affair breaks up, girl is very unhappy she complains to her father... the boy went on the internet to try find some sex and he gets in touch eventually with a 20-year-old girl called Cassy, she says to him I don't mind younger guys but you really have to know what you're doing and defendant says of course anyone doing so she says prove it by masturbating in the web cam so he masturbates himself regularly on webcam so cassy can see he knows how to handle himself, but cassy was really mr devonald the father of the girl so devonald was charged with causing the boys engage in sexual activity without his consent. The argument was that the boy hadn't been consenting because he had been deceived by devonald as to the purpose of the act and the court of appeal said in a very brief judgement yeh maybe but devonald's purpose was presumably to embarrass/immediate boy and get some kind of revenge on him the boy didn't know that therefore the jury was entitled to hold that the boy was intentionally deceived as to the purpose of him being
- 92R v Devonald 2008 Facts continuedcaused to masterbate - It is very different from the green case: the green case is one where the defendants equal motivation is to get sexual gratification and others unaware of it, Devonald is almost the reverse Devonald actually assumes that Cassy once to get some sexual gratification out of it and is happy to be used for another person's sexual gratification, he doesn't know that the purpose is non-sexual so it's the complete reversal - it seems problematic to Rogers to say that someone is going to be the victim of a sexual offence if they're perfectly happy to be used in a sexual manner - seems that there may be other offences which are applicable to these cases: if there are offences of causing people embarrassment etc then devonald fits that but to say that the boy is a victim of a non-consensual sexual offence seems to entertain some difficulties
- 93R v B 2013 Facts and PrincipleDevonald Has now been doubted in this more recent decision, only doubted because the Court of Appeal can't overrule itself but the similarity between the cases is fairly stark and Rogers thinks we can regard this as a most implicit an overruling as the Court of Appeal can do.
B was a man living with his partner and they were still having regular sex together but B also had the idea that he should force his partner to do degrading things in front of the WebCam so he assailed her anonymously with various threats from someone who got in touch with her claim to know all about her and this messenger (who was really B himself) was threatening to kill the husband and possibly herself. the wife feeling herself overborne by these threats did strip in front of a WebCam and do sexual activities for the benefit of the WebCam user who turned out to be B himself - when he was discovered to be the perpetrator of these messages and threats the prosecution tried to rely on 76(2)a to convict him saying that the victim was unaware of his purposes, the Court of Appeal couldn't make any sense - 94R v B 2013 Facts and Principle continuedof this at all. They were saying that presumably wife Thought that the purpose of whoever this person was was to get sexual gratification which presumably was so we don't actually see any deceptions as to any purpose at all - at least in Devonald there could be said to be a deception as to some purpose bc Devonald was trying to embarrass the boy but here presumably the supposed purpose of the abuser probably was his purpose so no deception as to purpose anyway - they went a bit further and they thought that Devonald was probably wrongly decided, can't overrule themselves, they thought that 76(2)a should be kept strictly confined to purposes relating to defendant's sexual purpose although they didn't use that phrase as clearly as they might have done, seems to Dr Rogers that Devonald was wrong and that the only cases which can be prosecuted on the basis of deception as to purpose are prob those cases as per Green where the defendant has an actual motivation or purpose which the complainant has been deceived about and doesn't imagine exists...
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- First Year Criminal Law (Sexual Offences) Flashcards on Sexual Offences, created by Dina Storz on 30/05/2016.
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