topic 6 = rape and serious sexual offences

Does penetration of the mouth without consent satisfy the actus reus of the offence of assault by penetration? yes or no answer

No,

• oral penetration with the penis was included in the definition of rape for the first time by the SOA 2003, on the basis that oral sex without consent is as serious an infringement of autonomy as vaginal or anal sex. However, oral penetration by an object does not satisfy the requirements of assault by penetration

For the purposes of the Sexual Offences Act, a person can never consent to sex when unconscious

false

• unconsciousness only forms an evidential presumption that V didn’t consent and D didn’t have reasonable belief in V’s consent → which can be easily rebutted by the defence: S. 75 SOA 2003

In the case of R v Piper [2007] in the Court of Appeal, what presumption was made?

There was a conclusive presumption of lack of consent to sex

• R v Piper [2007] EWCA Crim 2151, D pretended that he was a model scout and persuaded a number of women to agree to have their breasts touched by D for ‘bikini measuring’. In fact D’s only purpose was sexual gratification. The Court found that there had been an intentional deception as to the purpose of the act as the Vs had not realized that the touching of their breasts had a sexual purpose.

what is section 76 of the Sexual Offence act?

(a) If the D had intentionally deceived the complainant as to the nature or purpose of the relevant act

(b) The defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.

What is the main difference between rape and the offence of assault by penetration?

• Assault by penetration can involve a penetration using anything; rape is restricted to penile penetration
  

what necessarily amounts to the actus reus of rape?

• penile penetration of the mouth

• penile penetration of the anus

• penile penetration of the vagina
  

For the purposes of the Sexual Offences Act, a person consents if……………?

if he agrees by choice and has the freedom and capacity to make that choice

Under section 75 Sexual Offences Act 2003 in certain circumstances it can be presumed that the victim did not consent, but this can be rebutted if………………?

the defendant adduces sufficient evidence to raise an issue as to whether the victim consented.

Peter tells Jane, his employee, he will promote her if she strips in front of him. Jane does so

What section of the Sexual Offences Act contains the most likely offence by peter?

Section 4 bc =

• causing sexual activity without consent under s.4

there is no physcial contact beween peter and jane and there is uncertainty whether jane consents or not

A is prosecuted for the rape of B. At trial, it is undisputed that A had unprotected sex with B, with B’s agreement, but without disclosing A had genital herpes. A argues that B consented.

What should the judge do?

The judge should order the jury to acquit.

n R v B [2007] it was held by the Court of Appeal that failing to disclose that one has an infectious disease like HIV is an irrelevant consideration under both s.76 and s.74. As such, in relation to non-disclosure of infectious disease there can be no liability for rape on this basis, so the judge would have to order the jury to acquit. However, remember that in Assange [2011] it was suggested that, even if a deception does not fall within the conclusive presumptions in s.76, the question of consent may in some other circumstances still be left to the jury to decide under s.74. In Assange, the High Court found that the deception about wearing a condom, while not falling in s.76, could fall within s.74.