rape
assault by penetration
sexual assault
trespass with intent to commit a sexual offence
textbook linked to this is Clarkson and Keating: criminal law 10th edition by SR Kyd , T Elliott and MA Walters chapter 7
Ss1-3 2003 - the key offences
1. Rape - S1
2. Assault by penetration - S2
3. Sexual assault - S3
For all 3 offences
AR
• The sexual act
• Lack of consent by V
MR
• Intention to do the act
• Lack of reasonable consent in Vs consent
Legal definition of consent
S74 SOA 2003 states a person ‘consents if he agrees by choice and has the freedom and
capacity to make that choice’
Agreement = must be agreement at the relevant time
Freedom = if someone is not free to agree/disagree then even if they agree this will not be
consent
Capacity = Cooper 2009 where Has held that the law on capacity recognises that to be able to
make a decision a person must be able to understand the information relevant to making It and
must be able to weigh that information in the balance to arrive at a choice.
Olugboja 1982 - there is a difference between consent and submission; every consent
involves a submission , but it by no means follows that a mere submission involves consent
Watson 2015 - trial judge directed jury person may feel unable to resist but not lack the
freedom to make the choice ; reluctantly consent . Judges direction didn’t reflect the law
accurately.
Consent ; evidential and conclusive presumptions
Evidential S75 - sometimes called rebuttable means D has to call sufficient evidence to
persuade the judge that the issue of whether V consented and reasonable belief should be
given to jury to decide
Conclusive S76 - make it impossible that V was consenting and for D to argue he had a
reasonable belief in Vs consent . If this S applies then lack of consent is conclusive and D cannot
argue he had reasonable belief in consent
Go down the list , does S76 apply ? If not does S75 apply ? Etc
If S75 applies D can still rebut this presumption with evidence
If S75 doesn’t apply , check 74 and assess evidence and ascertain whether V was consenting and
issue will go to jury to decide whether there was reasonable belief in consent.
Conclusive presumptions S76
S76 presumptions about consent if proven , conclusively presumed V did not consent and D
did not have reasonable belief in Vs consent :
Circumstances are that
A) D intentionally deceived complainant as to nature or purpose of relevant act
B) D intentionally induced complainant to consent to the relevant act by impersonating a
person known personally to complainant
Tabassum - Vs who consented to breast examinations for what they thought was medical
research. Wouldn’t had had it had they known D was not medically qualified. Consented to
nature of act not quality - not real consent.
, R v McNally 2014 - D “female” contacted V over socials claiming to be a young male. Period of
3.5 years they developed romantic relationship and V considered D to be her boyfriend. During
visits numerous occasions of oral and digital penetration of V. V discovered D not male. D
convicted of assault by penetration. Vs consent obtained by fraudulent deception , had she
known she wouldn’t have consented.
Reasoning may lead to situation where transgenders may need to reveal their sex as born with to
prospective sexual partners ( breaches to article 8 ?)
Evidential presumptions S75
V is to be taken not to have consented unless sufficient evidence is assumed to raise an
issue as to whether he consented and D is to be taken not to have reasonably believed V
consented unless sufficient evidence is adduced to raise an issue as to whether he
reasonably believed it.
Circumstances are :
A) at time of act or immediately before using violence or causing V to believe violence
would be used
B) At time of act or immediately before using violence or causing V to believe violence would be
used against another person
C) V was unlawfully detained
D) V was asleep or otherwise unconscious at the time
E) Because of Vs physical disability , V would not have been able at time of relevant act to
communicate consent to D
F) Any person had administered to or caused to be taken by V without their consent a
substance which having regard to when it was administered or taken was capable of causing
or enabling V to be stupefied or overpowered at time.
In subsection 2a and b the ref to time immediately before relevant act began is in case of an act
which is one of a continuous series of sexual activities , ref to time immediately before first sexual
activity began
Only rare cases where S75 will be used as normally S74 and S1(2) will just be considered
- unlawfully detained - R V B 2006 tied to a bed
- Asleep - Blacklock 2006 V was asleep but s75(2)(d) not referred to , s74 used
R v P 2009 ‘advanced’ consent when V asleep cannot be relied upon as reasonable belief in all
circumstances . Must be consenting at time of act
- stupefied voluntarily - if V stupification from substance is purely voluntary and fully informed
presumption doesn’t apply Abbess 2004
Rape S1 2003
Punishable by life imprisonment
Since 1994 rape has included vaginal or anal and V may be male or female, law moved towards
gender neutrality though not completely as legally only persons with a penis may commit rape as
principal offender.
In Attorney general’s reference no.86 of 2006 confirmed fact that rape occurred within a domestic
context did not justify a reduction in sentence.
S1
(1) a person (A) commits an offence if
a) he intentionally penetrates the vagina , anus of mouth of another person (B) with his
penis
b) B does not consent to penetration and
c) A does not reasonably believe that B consents
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