Sexual Offences Act 2003, section 1 mindmap

Sexual Offences Act 2003, section 1 mindmap

1. Has the defendant satisfied the actus reus of the offence?

   • Has the defendant penetrated the vagina, anus or mouth with his penis?
     • Yes
       • Has the victim consented? To assess this, we need to narrow in on the subjective mind of V.
         • Yes - was the consent from V legally effective? Two factors to assess this issue: capacity (V must be able to understand that choice, with sufficient mental capacity. Freedom, V must have sufficient freedom, no definition under SOA 2003 so more flexibility and discretion for a jury to interpret.
           • Yes - no offence under section 1
           • No - need to satisfy mens rea
         • No - need to satisfy mens rea
           • Has the defendant satisfied the mens rea of the offence?
             • Has the defendant intentionally penetrated the victim's vagina, anus or mouth?
               • No - no offence under section 1
               • Yes
                 • Does D lack a reasonable belief in consent? (Considerable objective dimension)
                   • Yes
                   • No - no offence under section 1
                   • D will satisfy this aspect of the mens rea where: intends V to lack consent, knows V lacks consent, is reckless as to consent, does not consider consent, or even honestly but unreasonably believes that V consents
                   • Section 1(2) gives us some subjective considerations to assess D against. It is "Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps [D] has taken to ascertain whether [V] consents.
         • If facts of case come within section 76(2) circumstances, there is a presumption of non-consent without any need to consider definition of consent. The circumstances are: the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act; the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.
         • Section 75 (2) provides six scenarios where the jury will find a lack of consent unless D provides evidence to rebut. These are: violence, fear of violence, unlawful detention, unconsciousness, disability preventing communications, involuntary doping
     • No - no offence under section 1