Sexual Offences

Question 1

Name some historical views around rape

Answer 1

• The code of Hummurabi

- Rape of Sabine women

Question 2

What was the focus on rape in past years?

Answer 2

A focus on violence and active resistance

Question 3

As late as 1965, courts regarded D’s use of force and V’s active resistance as an essential component of rape. What case is this illustrated in?

Answer 3

Howard

Question 4

What is the law today on rape seen as?

Answer 4

An interference with someones body

Question 5

Who explained the law of rape as now, takes a more liberal view, with a focus on bodily integrity

Answer 5

Lacey

Question 6

Consent is a mental element, it is hard to prove what is going on inside someones head. What can help us prove this?

Answer 6

The burden of proof and the balance of probability

Question 7

s.79 SOA 2003

Answer 7

Penetration is an ongoing process.

Question 8

Who described rape as “one persons word against another”

Answer 8

Saunders

Question 9

What is critical to the criminalisation of the law in sexual offences?

Answer 9

The absence of reasonable belief in consent

Question 10

Name some cases where there is a an explicit condition to the sexual intercourse?

Answer 10

Assange - This is where Assange had entered into sexual intercourse with his partner on the basis of an agreement that hw would wear a condom. However, partway through the sex, assange removed the condom and then claimed to still be wearing it as they continued having sex.
F - Withdrawal before ejacuation

Question 11

How are the cases of Assange and F similar?

Answer 11

Both of these cases are similar in that V specifies explicitly that there are conditions upon her consent, D accepts these conditions and sex is undertaken on the that understanding; but either halfway through or from the start, D intentionally violates V’s conditions and therefore V’s consent is void.

Question 12

McNallly case

Answer 12

Gender deception. D was convicted for assault by penetration, on the grounds that she had procured the sexual activity by deceiving V as to her (D’s) gender. Gender deception did vitiate consent on the facts.

Question 13

R v Bree

Answer 13

Drunken consent is still consent

Question 14

R v Jheeta

Answer 14

Pretended to be the police. Guilty of rape: D’s deception undermined V’s apparent consent

Question 15

When was it recognised that men can be victims of rape?

Answer 15

Only 25 years ago was there recognition that men can be victims of rape, this is due to a life in a patriarchal society. If men have to be ‘tough’ then we can not possibly recognise that they can be victims of sexual abuse.

Question 16

What is voyeurism?

Answer 16

Voyeurism is a relatively NEW offence - things are developing quickly in the law. It involves spying on someone when they are engaged in a sexual nature

Question 17

What is the statutory regime for consent?

Answer 17

Do either of the conclusive presumptions about consent/belief in consent in s76 apply? If not, do any of the evidentiary presumptions about consent/belief in consent in s75 apply? If not, did the complainant consent under the definition in s74?

Question 18

When does a person consent?

Answer 18

A person consents if he agrees by choice, and has the freedom and capacity to make that choice - s74

Question 19

Free consent needs to be

Answer 19

Informed and explicit

Question 20

What did Reed et al say about consent and rape?

Answer 20

“The role consent plays within these offences is a fascinating area of law, and certainly important, but it can also be rather challenging”

Question 21

Pre SOA 2003, there was no codified definition of consent in order to know what test to apply and the definition of consent was left to the common understanding of the jury. This approach attracted considerable criticism, who highlighted this?

Answer 21

Glanville Williams highlighted the ‘deplorable tendency of the criminal courts to leave important questions of legal policy to the jury’

Question 22

What was one of the primary ambitions for the SOA 2003?

Answer 22

The reformers working towards the SOA 2003 made a clear and robust definition of consent to be one of their primary ambitions. The definition of consent is now within the SOA 2003, spread across s.74, 75 and 76.

Question 23

Williams (1923)

Answer 23

Singing teacher deceived a 16 year old, telling her that having sex with her was a procedure to help her singing voice - deception

Question 24

Dica (2004)

Answer 24

D, knowing he had HIV, had unprotected sex with two victims - guilty of an offence against the person but not rape

Question 25

Linekar (1995)

Answer 25

D had sex with V, a prostitute, having promised to pay £25 - never intended to pay and therefore guilty of rape due to deception

Question 26

The general definition of consent within s.74 provides two important clarifications. What are they?

Answer 26

First, that the individual ‘agrees by choice’ - consent should be viewed as a positive sign of willingness, as opposed to the absence of an objection. - discussed in the case of Watson.
Secondly, the definition highlights the importance of capacity (case of C (2009) and freedom (from threats and deception

Question 27

Kirk

Answer 27

A homeless teenager, V, agreed to have sex in exchange for food. The COA held this was not consenting

Question 28

Morgan

Answer 28

D and others had sex with V after being told by her husband to do so. Each were charged with rape, D’s belief must be reasonable.

Question 29

What did Gardner explain in the “Wrongness of Rape”

Answer 29

Gardner explained that the wrongfulness of rape doesn’t lie in the harmfulness of rape and that it is wrong in its own right, even without the emotional harm.

Question 30

Phillips

Answer 30

Phillips examined the close association between abduction and rape, explaining that in English common law the distinction between the two crimes became
blurred over time