sexual assault

Question 1

Kaitamaki

Answer 1

D continued once consent was withdrawn so was guilty of rape.

Question 2

Blackstone’s definition of rape

Answer 2

“carnal knowledge of a woman forcibly and against her will”

Question 3

R v Fletcher

Answer 3

that rape could be committed where V lacked capacity to consent

Question 4

R v Camplin

Answer 4

that rape could be committed where V lacked capacity to consent due to alcohol

Question 5

R v Olugboja

Answer 5

Important distinction between consent and submission. , the jury will decide.

Question 6

R v Hysa

Answer 6

The decision on whether there was proper consent remains a jury issue and it will be rare for a judge to withdraw the issue from them

Question 7

R v Ali [2015] EWCA

Answer 7

¥ one young V who had been groomed had ‘admitted’ consent. CA held: where there was also evidence to the contrary, “the question of whether real or proper consent was given will usually be for the jury unless the evidence clearly indicates that proper consent was given.” A’s conviction for rape was upheld.

Question 8

R v C

[2009] UKHL

on s.30 (sexual activity with a person with a mental disorder impeding choice).

Answer 8

C was a 28 year old woman, history of severe mental disorder. Irrational fears. D appealed against conviction, CoA overturned it, prosecution appeals, HoL allowed the appeal against the acquittal. Capacity not necessarily something whih is either constant or never there. Ask if whether at that time the victim as capable of consenting. May have a victim that has in some cases the capacity to consent, in other cases doesn’t have the capacity.

Question 9

Assange v Swedish Prosecution Authy [2011] EWHC

Answer 9

if defendant promises to use condom during intercourse and deliberately does not then it is open to the Jury to decide that the victim has not actually chosen intercourse in the way it happened, so no propert consent.

It was held that even though D’s deception did not fall within s.76, this did not preclude reliance upon s.74.

Question 10

R v McNally [2013] EWCA

Answer 10

(deception as to gender)

CoA distinguished disclosure and non disclosure

Possibility that choice is affected where the defendant does not fully understand the gender of the person. X believed that their sexual partner was a boy, but it was a girl. The court dealt with it as a deception for inducing the partner, under s74 there was no real agreement, this was not a rape but assault by penile penetration.

Question 11

R v EB [2006] EWCA

Answer 11

D knew he was HIV positive but did not tell V. Following R v Dica CA held this was not rape, but could be an offence against the person of V. CA declined to decide whether the outcome might have been different had D deliberately misled V.

Question 12

R v White [2010] EWCA

Answer 12

Ð white pointed out that all defendant had to do is point out something again, it is relatively rare for this not to be the case, defendant in most cases would discharge his evidential burden.
Ð Defendant faced with presumption would question ‘the basic facts’, It is fine to question basic facts, but once presumption has arisen, it provides a strong presumption for conviction.

Question 13

R v Flattery (1877)

Answer 13

defendant managed to produce a belief that what was happening to her was some kind of surgery procedure with her. Deception as to nature of the act.

Question 14

R v Williams [1923]

Answer 14

340 a singing teacher, persuaded his student that act he was doing improved her vocal performance. This is rape. Deception as to nature of the act.

Question 15

McNally [2013] EWCA

Answer 15

victim thought her partner was a boy, but he was actuall a girl. No one suggeusted that s76 would apply but during course of judgement it was said that the sexual nature of the act was on any common sense view different where X is deliberately deceived. There is a different sexual nature here. If s76 did apply in this situation the defendant would have no answer to defence, they would be deemed to be guilty. Where defendant identifies as male, this creates problems.

Question 16

R v Jheeta [2007] EWCA

Answer 16

D deceived V into thinking the communication she received was from the police, he persuaded her that defendant would take his life in the situation and she would get a fine if she did not have sex. would be in trouble with the police if she did not agree to sex with him.

CA held: there was a deception but more to do with circumstances rather than the purpose of the act.
This was a case of submission not consent

Lord Judge said s76 is such a conclusive presumption is requires “the most stringent scrutiny”. It should be used for common or garden lies.
Lord Judge gave a warning to people not to use this in “common and garden lies”. He said that prosecution should make its case under s74.

Question 17

Assange v Swedish Prosecution Authy [2011] EWHC

Answer 17

): deception in this case, court did consider as a possible argument that sex with a condom is materially different from sex without due to risk of pregnancy. However, although there is a difference, this difference did not affect the nature or purpose of the act and as it did not do this, s76 did not apply. Defendant does not get off, this just means that prosecution has to base case on s74 and then the defendant can answer back.

Jheeta applied. S.76 inapplicable if D deceives V as to whether he is using a condom. Whether V consents is to be decided by application of definition of consent in s.74, not by presumption.

Question 18

R v B [2013] EWCA

Answer 18

In this case, defendant posed as a blackmailer called Grant, in this he communicated with V, claimed to have intimate photos of her and persuaded her to perform various sex acts over the camera. In facts, the defendant was her boyfriend, doing this to teach her a lesson. Though he deceived her, she knew the nature of the act and the purpose, which was sexual gratification of person watching her. The deception only went to the question of who. But! The person has to be unknown to her, so none of possibilities under s76 apply. It may still be a crime, but approach to consent should be to reference to s74, no true agreement to choice. As V was being blackmailed, it is likely no consent.

Suggested rare conclusive presumption should be used. V could not say that D impersonated someone she knew because she met him on the internet, he said he was called “grant”. The victim never personally knew Grant.

Question 19

R v Devonald [2008] EWCA

Answer 19

Defendant was an adult man who formed an internet relationship with victim, who was a teenage boy in which the defendant pretended to be a girl. Eventually, the ‘girl’ persuaded the boy to masturbate on camera while defendant watched. The defendants motive was to teach the victim a lesson because victim had been unkind to defendant’s young daughter. Held: defendant was guilty of section 4 offence as to the purpose. This is because the victim relied on fact he was with a 25-year-old woman. This is the reason why the victim agreed to do as he did. But since B, this is unlikely to be deception of purpose. One could distinguish B on basis there was motive of sexual gratification in B and not in Devonald. But this is too narrow probably. Conclusive presumption depends on defendant. Devonald is no longer reliable under s76 but under 74 there might be no real agreement by choice.

Question 20

R v Green [2002] EWCA

Answer 20

men were persuaded to perform acts of masturbation having been told that it was part of a study.

Question 21

R v Tabassum [2000]

Answer 21

Man said he was testing for breast canse to touch woman’s breasts, woman had consented to examination only because they believed he was medically qualified.

Question 22

R v Piper [2007] EWCA

Answer 22

Set up interviews with models looking for work, his aim was to touch them under pretext of measuring them. These cases could go to jury under s74, do we need to use a more forceful device?

Question 23

R v Elbekkay [1995]

Answer 23

Before the 2003 Act personation vitiated consent as long as the person impersonated was the husband or long-term partner of V

Impersonation of a partner is valid. The appellant climbed into bed with the complainant. She assumed it was her boyfriend and he then started to have intercourse with her. She then realised it was not her boyfriend. The appellant was found guilty of rape and appealed contending she had consented to sexual intercourse. Held: The rule relating to impersonation of a husband applied equally to impersonation of a boyfriend.

Question 24

R v Heard [2007] EWCA

Answer 24

COA say if touching is accidental: then there is no case. D had rubbed penis against police’s leg. There was evidence that it was intentional, but court said if the defendant had too much to drink, trips and falls over and makes contact with private part, if it is not intentional, then it cannot be sexual assault.

Question 25

DPP v Morgan [1975]

Answer 25

Defendants were a group of men, including husband and gang raped wife despite struggles and protests, they said they thought she was consenting because husband told them she was. Result of case was that their conviction was upheld because no one including HOL believed that they thought Mrs Morgan was consenting, but point of law which upset people because judge told jury to convict them if they had no reasonable ground for their belief. This was wrong at common law because test at common law was a subjective test and if the men truly did believe in consent then even though they had no reasonable grounds for this, they were not rapists. House of Lordswhich decided that an honest belief by a man that a woman with whom he was engaged with sexual intercourse was consenting was a defence torape, irrespective of whether that belief was based on reasonable grounds. It remained the law until the enactment of theSexual Offences Act 2003.

Question 26

( B v R [2013]

Answer 26

Hughes says sexual offences act deliberately departs from the subjective model. It does not make genuine belief enough.
For defendant to escape now there must be:
1) Genuine belief in consent
2) This belief must be reasonable under the circumstances

Question 27

B [2013] EWCA

Answer 27

B prevents D relying on a belief which is ‘plainly irrational’ and thus (by definition) unreasonable.But B acknowledges (obiter) that a jury might find D’s belief is not unreasonable where it is not irrational although ‘most people would not have held it’. Possibilities might include D of less than ordinary intelligence or with limited ability to recognise behavioural cues.

Where Lord Hughes talks about reasonable belief. Case where D made V leaves. He persisted in having sex with partner where she said she did not want to, she submitted to intercourse without consenting. When he was interviewed to this possible rape, he said he never had sex without consent, this raised question that he really believed his partner was consenting when he was not. B suffered from paranoid schizophrenia, this raised question whether circumstances whether jury should take into account whether D was reasonable for D to hold this belief, could you take into account that he was ill. COA held no to the extent that the belief, if existed was delusional and produced by illness then he could not rely on it as a circumstance under subsection 1©.
Fact of law – If you are delusional or belief is induced by illness, you cannot rely on circumstance under section 1(c).

Question 28

R v M [2011] EWCA

Answer 28

Defendant was bipolar, this might have let to him overriding victim’s objections to sex. He thought she was not entitled to hold consent. Held: not valid

Question 29

R v H [2005]

Answer 29

Ð act itself might not be obvious at all but if it is capable of being so, the jury can go through this process. In this case of sexual touching under s3, the defendant grabbed the victim by her tracksuit bottoms and he said, “fancy a shag?”. This touching was not inherently sexual but it was capable of being so and so it was open to the jury to decide if it was rendered sexual by what they heard of the circumstances and purpose of the defendant.

Question 30

R v H,

Answer 30

Lord Wolff said the way the definition is phrased you do not necessarily have to make contact through the clothing, because it s3 includes touching through clothing. So touching the clothing in a sexual way might be under s3.

Question 31

R v Grout [2011]

Answer 31

¥ sexual conversation could be incitement

inciting a child to sexual activity under s8, same problem arises what is activity. COA was prepared to accept that if victim as drawn into a conversation which then involved her sending sexual explicit photos, this could be sexual activity, so sexting. Notion of activity that although it has to be sexual in nature, penetration has to include merely a conversation between A and B.
¥ Possible penetration which is perpetrated by a woman in relation to a man, a woman could impersonate someone known to the victim a man for the purpose of tricking him into sex. (a woman needs to penetration) if d impersonated this would fit in s4. The penalty for s4 in a case involving penetration can be as much as life sentence then you can see how rape by a female can be of equivalent seriousness, it is not labelled rape under s1 but it may amount to an equally sexual crime under s4.
Q

Question 32

R v Walker [2006] EWCA

Answer 32

Inciting’ here means encouraging under s8

D said “show us your fanny”, held: guilty of inciting sexual activity under s8, whether or not d intended the sexual activity is irrelevant to D’s liabiltity.

Question 33

Cf A-G’s Ref No 74 and 83 of 2007 [2007] EWCA

Answer 33

Consent is irrelevant (though it may go to mitigation of sentence, particularly where D is also young, in relation to s.5 rape

Question 34

R v G [2009]

Answer 34

Strict liability applies re: age – it is irrelevant that D believes V is over 13, even if the belief is reasonable.

¥ G, a 15 year old boy had sex with a girl aged 12. Initially she said she did not consent, which would have led prosecution to bring a serious charge of s5, statutory rape, he pleaded guilty but said that she did consent and he thought she was 15. The case proceeded to a hearing, the girl refused to give evidence but she did admit misleading him about her age. Decided to sentence him on bases that his story was the true one, but he then argued that the whole conviction was unfair and violation to a right of a fair trial under article 6 because of the level of strict liability that was being imposed upon him. But both the SC and EUHR held that it was not, article 6 may guarantee fair process but does not dictate the content of criminal law and parliament is entitled to use strict liability. The courts work on presumption of mens rea, if parliament intends strict liability the courts will follow and parliament made its argument extremely clear. An argument which split the court was an article 8 argument, right to a private life, this was about proportionality, should he have been ultimately convicted of a rape crime or should prosecution looked at lesser options, under s9 sexual activity for child combined with s13 which enabled a person under age of 18 to be prosecuted, a lesser offence of a max of 5 years, was it disproportionate as to what he had done, but time it got to SC, the COA reduced the sentencing. Majority in SC thought that it was not disproportionate on basis of more serious offence, minority thought it was based on age and circumstances.

Question 35

B

Answer 35

Suggests that d’s status (i.e male, hiv positive) is only relevant to consent where there is active deception. however, smith and hogens objects.

Question 36

Linekar

Answer 36

d had sexual intercourse with v, a prostitute, having promised money. d never intended to pay. v said she would not have had sex if she knew. argued deception of purpose. held: not rape, her consent remained effective, she was not decieved about nature nor purpose (for his sexual gratification). Thus, likely decpeion of d’s not v’s purpose.

Question 37

R v C

hl

Answer 37

test for capacity

1) a person must be able to understand the information relevant to making it, and
2) must be able to weigh up the information in the balance to arrive at a choice.

she lacked capacity to consent because of her mental disorder to do the second one.

Question 38

bree

Answer 38

if someone is heavily intoxicaated, she may fail the test for capacity set out in c.

Question 39

will s76 apply often?

Answer 39

jheeta - only in the rarest of cases

Question 40

McNally

Answer 40

some deceptions (such as, for example, in relation to wealth) will obviously not be sufficient to vitiate consent.

but deception as to gender is. This was a positive deception because his online profile say male, and d never corrected v about this mistake.

Question 41

Court

Answer 41

D pulled a girl across his knee and spanked her clothed bottom. when asked why, he said bottom fettish. d was charged with indecent assualt.

this is a case where d’s touching is unlikely to be considered sexual by nature but made sexual because of d’s purposes

Question 42

Jones

Answer 42

s8 incitement does not require the targetting of a particular child: in this case he left a note in the toilet asking for sex with any child.

problem: the use of strict liability has potential to cause problems. e.g where x writes a blog about how amazing sex is and that people should have sex as soon as possible. d did not intend to encourage children to have sex and does not need to foresee that children will even read his post. however, this has the potential to encourage children age 12 or under to engage in sexual activity. thus, d’s conduct satisfies the elements of the offence, and he must rely on prosecutorial discretion to avoid liability.

Question 43

s13

Answer 43

where person is under 18, can be an offence under s13. however, in the case of r v g, he was convicted under s5, he appealed due to the home office guidance. but this was rejected. in a problem question, due to the guidance charge him with s13 but highlight the alternative guilty s5 offence, and note the case of r v g, but likely s13 is preferred due to lesser sentence also.

Question 44

Bree

Answer 44

If a victim is drunk she can still give consent, will be left to jury to decide whether V was so drunk that she could nt give effective consent.