Sexual Offences Summarised Notes for the Criminal Law module, LLB, at City, University of London (achieved a 1st class using these) - can of course be used for other universities as well! Would really recommend the full bundle of notes!
Actus Reus Mens rea
Conduct Penile penetration of Vs vagina, anus or Intention
mouth
Circumstanc V does not consent D lacks reasonable belief in
e consent
Result None None
A person (D) commits an offence if –
he intentionally penetrates the vagina, anus or mouth of another person (v) with his penis
V does not consent to the penetration
D does not reasonably believe that V consents
Actus Reus
‘Penile’ penetration: rape can only be committed where D penetrates with his penis, if use
something else be another sexual assault under s.2, and includes surgically constructed penis.
Women can be accessories if they assist/encourage man to commit rape, but cannot commit as a
principle offender
Penetration of vagina, anus, or mouth: to protect sexual autonomy includes anus as well.
Includes surgically constructed vagina possible for man to be victim of rape. Penetration does
not need to be substantial/repetitive; offence is satisfied if Ds penis penetrates the vulva (outer
part of vagina). Also includes act of penetration ‘is a continuing act from entry to withdrawal’
which is important if D penetrates vagina, anus or mouth with consent, but fails to withdraw after
consent is removed.
Age and/or status restrictions: Ds age over 10 (age of criminal responsibility) capable of
committing offence on V of any age, relationship of V is irrelevant e.g. does not matter if
marriedMarital rape
Without Vs consent: requires proof that V did not consent to penile penetration challenging to
give clear guidance to a jury on whether there was no consent focus on then subjective mind
of V
McFall [1994]
D kidnapped V, a women who he had been living together with. D showed he wanted sexual
intercourse with V and she accepted, fearing for her safety if she refused. V pretended to consent
during the act and faked enjoyment D was charged with rape
Issue of consent
Pre-SOA 2003: there was no codified definition of consent, and was left to common law in seeing the
understanding of the jury criticism as jury are not being asked to apply facts to a legal rule, being
asked to define consent as well
Post-SOA 2003: reform was made, with a rigid definition of consent would provide guidance to
juries, but a risk of such rigidity can lead to unfairness due to great diversity of sexual interactions
means juries need to assess each
Section 76: ‘conclusive presumptions’: set of facts which, if proved, will be enough for non-consent
Section 75: ‘evidential presumptions’: set of facts which, if proved, will counter to prevent non-
consent
Section 74: general, less precise, definition of consent
Conclusive presumptions of non-consent (s.76)
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,Circumstances are that –
D intentionally deceived the complainant as to the nature or purpose of the relevant act
D intentionally induced the complainant to consent by impersonating a person known by
complainant
Deception as to nature or purpose of the act: V is misled as to the physical nature of the act;
deceived as to the ‘purpose’ of the act where she is misled as to why it should happen Williams
[1923]
Williams [1923]
Under the old law pre-SOA 2003, D who was a singing teacher convinced V (16yr old) to let him do
something to improve her singing voice. He was actually having sexual intercourse with her D
charged with rape.
Court found deception as to the nature of the act, it was for sexual gratifications, not to improve
singing voice, thus if it was decided today the conclusive presumptions in s.76 would oblige a jury to
find there was no consent
With ‘nature’, if V understands basic dynamics of the sexual act, deception as to associated risks will
not be sufficient to engage the conclusive presumptions especially to risk of sexual infection Dica
[2004]
Dica [2004]
D knowing he was HIV positive, had unprotected sexual intercourse with 2 victims, infecting both. It
was clear both would not have consented to intercourse if they had known about Ds infected
statusHeld: D was guilty of an offence against the person, no rape as to the lack of knowledge of
infection did not amount to deception as to the ‘nature’V knew he was going to put his penis in
her vagina no conclusive presumption
Dica established principle that consent to sexual intercourse does not include consent to risk of
infection where D knew of the infection and did not inform V.
‘Purpose’ – Linekar [1995] shows deception as to purpose of sexual act does not include deception as
to Vs purpose
Linekar [1995]
Under of law pre-SOA 2003, D had sexual intercourse with V, a prostitute, having promised to pay
her £25. D never intended to pay, D was charged with rape on the basis that V would not have
consented if she knew D had no intention to pay Held: no rape, as consent was not undermined by
Ds deception, consent remained effective as she was not deceived with nature of act or the purpose,
for his sexual gratification
In Devonauld, V is deceived as to purpose if (despite understanding sexual) V is deceived as to Ds
motives
Devonauld [2008]
V (16yr old boy) involved in a relationship with Ds daughter. Relationship ended and D, believing V
had treated his daughter badly, sought revenge. D posed as a young woman on internet, formed a
link, persuaded V to masturbate in front of webcam. D was planning to use to humiliate V D
charged under s.4 of SOA Held: guilty of sexual offence, s.76 presumption applied: V was not
deceived as to Ds purpose in relation to act. Vs consent was that he thought he was masturbating for
sexual gratification of young women, so deception undermined consent
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,Deception as to the identity of D
Conclusive presumption of non-consent will apply where D intentionally deceives V as to his identity.
Presumption will not apply if D pretends to have certain attributes such as a well-paid job, or even
where he pretends to be someone that is not known personally to the victim e.g. a celebrity these
cases are under s.74. Conclusive presumption will only apply if D intentionally pretends to be
someone V personally knows e.g. husband
Rebuttable presumptions of non-consent: (s.75)
If not conclusive presumption (s.76), look if it is within rebuttable presumptions
Rebuttable presumptions do not establish a lack of consent , if jury finds a lack of consent UNLESS
D provides evidence to rebut (challenge) the presumption s.75 creates a limited reverse
evidential burden
Requires that certain facts arose and also D had knowledge of those facts e.g. first rebuttable
presumption arises where violence has been used against V at the time or immediately before
the act (rape=penile penetration) thus if V were to suffer violence from another, without Ds
knowledge, the presumption will not arise.
Prosecution do not need to demonstrate that those facts caused Vs lack of consent
If facts mirror one of the scenarios in s.75 and D has knowledge of this, then burden is on D to
provide evidence to rebut that presumption – does not necessarily require D to deny facts (e.g.
deny violence was used) it is enough for D to deny the implication that such facts demonstrate a
lack of consent. E.g. with violence, D can say they were engaged in sadomasochistic sexual acts
that V consented to both violence and penetration
s.75 (2): 6 scenarios where rebuttable presumption of non-consent will arise:
(a) Any person was, at the time of the relevant act or immediately before it began, using violence
against the complainant or causing the complainant to fear that immediate violence would be
used against him
Potential for a sadomasochistic relationship makes a rebuttable presumption of non-consent
(b) Any person was, at the time of the relevant act or immediately before it began, causing the
complainant to fear that violence was being used, or that immediate violence would be used,
against another person
Where D or another would or threatens to inflict violence on another e.g. Vs child unless submits
to intercourse
(c) The complainant was, and the defendant was not, unlawfully detained at the time of the
relevant act
Difficult to rebut – applies where V submits to sexual acts whilst in hostage of D or others
(d) The complainant was asleep or otherwise unconscious at the time of the relevant act
Presumption will only apply where V is fully unconscious, and D is aware of this
Where V is intoxicated, and it is e.g. short unconsciousness, than presumption will not apply
(e) Because of the complainant’s physical disability, the complainant would not have been able at
the time of the relevant act to communicate to the defendant whether the complainant
consented
Physical disability prevents her to communicate consent on this occasion presumption of non-
consent
(f) Any person had administered to or caused to be taken by the complainant, without the
complaint’s consent, a substance which, having regard to when it was administered or taken,
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, was capable of causing or enabling the complainant to be stupefied or over-powered at the
time of the relevant act.
Drug-rape where D causes V to consume unwanted stupefying substances by e.g. alcohol
General definition of non-consent (s.74)
Many of the cases of non-consent will be dealt under s.76 & s.75
Where a presumption does not apply at all, or where under s.75 is rebutted, still apply under s.74
Certain cases will fall outside presumptions and yet still clear consent is not effective Jheeta
Jheeta [2007]
D sent V anonymous text messages over several years, purporting to be from the police, telling her
to continue to having a sexual relationship with D in order to avoid fines for causing distress. D was
charged with rape
Held: guilty of rape, Ds deception undermined Vs apparent consent D deceived V, he never
deceived as to nature (physical dynamics) or purpose (sexual gratifications) so conclusive
presumptions of non-consent do not apply. Also, facts do not fall within rebuttable presumptions
either.
s.74= For the purpose of this part, a person (v) consents if he agrees by choice, and has the freedom
and capacity to make that choice.
Gives jury discretion in cases that fall outside the presumptions
’agrees by choice’ shows consent as a positive sign of willingness
Effective consent= with ‘freedom’ and ‘capacity’
Capacity= make a valid choice to consent; understand that choice with sufficient mental capacity;
not status based
C (2009)
V had a history of mental disorders manifesting in manic episodes and delusions involving irrational
fears for her safety. D befriended V, gave her crack cocaine, and made her perform acts of oral sex
on him and another. V claimed that she only consented out of fear for her safety
Held: guilty of section 30 (sexual activity with a person with a mental disorder impeding choice),
capacity can be undermined where V understands the nature of the act but a mental condition
prevents her making a real choice
In the absence of status-based approach to capacity (where courts would hold if V suffered certain
mental disorders, would automatically mean V was not consenting), a different test would be
needed
(a) a person must be able to understand the information relevant to making it, and
(b) must be able to weigh that information in the balance to arrive at a choice
(Mental disorder not only way to fail test for capacity +If heavily intoxicated)If heavily intoxicated)
Freedom= not defined under SOA 2003 and little precedent has a lot of flexibility for court and jury
to interpret
Freedom from threats and deception from D. certain threats of violence leads to rebuttable
presumption (s.75), other threats e.g. threat to injure V in the future will fall under s.74.
Some cases show e.g. non-disclosure of HIV will not undermine consent, others (outside of
conclusive presumptions) show deception is enough to undermine consent under s.74 like
Assange (deception of use of condom), F v DPP (deception as to intentional internal ejaculation),
and McNally (2013) (deception of gender)
Lack of freedom can also not be caused by D, but he may take advantage to induce V to submit to
sexual acts. E.g. financial pressure; pressures from wanting to maintain a relationship; wanting to
start a family this will not normally undermine consent. But there are exceptional cases:
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