Module 5: Sexual Offences

R v H [2005] EWCA Crim 732

Facts: Touched pants crotch

Question: Sexual=?

Answer:: Yes, test: could it be of sexual nature? considering circumstances/purpose was it in fact sexual?

R v B [2007] 1 Cr App R 29

Facts: Failure to disclose STD

Question: Vitiates?

Answer: No

Ratio: :) Dica [2004] & Konzani [2005] x consent to an STD does not vitiate consent to sex (can vitiate for OAP)

Hysa [2007] EWCA Crim 3473

Facts: Blackout ∴ x remember resisting

Question: Consent?

Answer: No requirement that C resist or explicitly communicate x consent.

Kirk [2008] EWCA Crim 434

Facts: Desperate 14 yr old 'submits' for £3.45 for food

Question: Consent?

Answer: No, consent requires freedom x present with economic duress.

Doyle [2010] EWCA Crim 119

Facts: Agrees by choice

Question: Consent?

Answer: Agrees by choice + has freedom & capacity to choose

Bree [2007] EWCA Crim 804

Facts: Drunk sex

Question: Consent?

Answer: Yes, drunken consent = consent. However, capacity to consent must be assessed.

Ali (Yasir) [2015] EWCA 1279

Facts: Grooming

Question: Consent?

Answer: No, real consent is not given in cases of grooming.

R (Monica) v DPP [2018] EWHC 3508 (Admin)

Facts: Undercover officers deception (regarding beliefs, profession, identity)

Question: Vitiates consent?

Answer: No, deception in this context does not vitiate consent.

Assange [2011] EWHC 2849 (Admin)

Facts: Condom deception

Question: Vitiates consent?

Answer: Yes, a lack of disclosure regarding condom use does vitiate consent.

R (F) v DPP [2013] 2 Cr. App. R. 21

Facts: Withdrawal before ejaculation deception

Question: Vitiates consent?

Answer: Yes, deception about withdrawal vitiates consent.

Jheeta [2007] 2 Cr App R 34

Facts: Texted gf threats posing as police to coerce

Question: Nature/purpose deception?

Answer: No

Ratio: BUT s. 74

Devonald [2008] EWCA Crim 527

Facts: Dad posing as girl encouraged daughter's ex to masturbate on webcam to humiliate

Question: Nature/purpose deception?

Answer: Yes

Ratio: Deception ↗↔ VS. Jheeta which Bingham later follows

R v B [2013] EWCA Crim 3

Facts: Schizophrenic believed bf had sexual healing powers

Question: Reasonable belief in consent?

Answer: No

Ratio: Reasonable given circumstances (schizophrenia x accounted BUT youth, immaturity, learning disorders maybe) including steps to ascertain if consent

Bingham [2013] EWCA Crim 823

Facts: Blackmailed ex gf online posing as other men to coerce

Question: Nature/purpose deception?

Answer: No

Ratio: BUT blackmail (follows Jheeta)

Cicarelli (cf. White) [2011] EWCA Crim 2665, ([2010] EWCA Crim 1929)

Facts: Sexually touched drunk sleeping girl who had previously made advance at party

Question: Presumption rebutted?

Answer: No, insufficient evidence that belief was reasonable

Ratio: BUT White [2010] explicit prior permission maybe reasonable

DPP v Morgan [1976] AC 182

Facts: Husband invited men to have sex with wife & told to ignore struggle as she :)

Question: Honest belief in consent?

Answer: Yes

Ratio: Jury convicted regardless as clear immorality (SOA 2003 law reformed to 'catch up' honest → reasonable)

R v Lawrance [2020] EWCA Crim 971

Facts: Vasectomy deception (∴ abortion)

Question: Vitiates?

Answer: No

Ratio: About consequences (i.e. HIV status lie B [2007]) x act itself (i.e. condom in Assange [2011] and withdrawal in F [2014]), still freedom to choose.

R v McNally [2013] EWCA Crim 1051

Facts: Gender deception

Question: Vitiates?

Answer: Yes

Ratio: Consent hinged on sex act with male, x freedom to choose whether to engage with female

Sexual Offences act 2003 s. 1-4, 74-76, 78

Legislation outlining key definitions, offences, and consent requirements in sexual offences, including the definition of consent and specific offences such as rape and assault by penetration. It also addresses the issues surrounding mistaken belief in consent and the criteria under which such beliefs may be deemed reasonable.