2.8 Sexual Offences

Where is rape found in the Sexual Offences Act?

Section 1

What is the actus reus of rape?

• Penetration of the mouth, anus or vagina of another with a penis (S1)(1)(a))

• The complainant does not consent to the penetration (S1(1)(b))

Where is assault by penetration found in the Sexual Offences Act?

Section 2

What is the actus reus of assault by penetration?

• Penetration of the vagina, mouth or anus or another with a part of the body or anything else (S2(1)(a))
• The penetration is sexual (S2(1)(b))
• The complainant does not consent to the penetration (S2)(1)(c))

What is the mens rea of assault by penetration?

• Intention as to penetration (S2(1)(a))
• No reasonable belief that the victim consented to the penetration (S2(1)(d))

What is the mens rea of rape?

• Intention to penetrate (S1(1)(a))
• No reasonable belief that the victim was consenting (S1)(1)(c))

Where is sexual assault found in the Sexual Offences Act?

Section 3

What is the actus reus of sexual assault?

• Intentional touching of another (S3)(1)(a))
• The touching is sexual (S3)(1)(b))
• The victim does not consent to the touching (S3)(1)(c))

What is the mens rea of sexual assault?

• Intention to touch the victim (S3)(1)(a))
• Lack of reasonable belief that the victim was consenting (S3)(1)(d))

Where is causing a person to engage in sexual activity without consent found in the Sexual Offences Act?

Section 4

What is the actus reus of Section 4?

• Causing someone to engage in an activity (S4)(1)(a))
• The act is sexual (S4)(1)(b))
• The complainant does not consent to the act (S4)(1)(c))

What is the mens rea of Section 4?

• Intention to cause someone to engage in sexual activity (S4)(1)(a))
• Lack of reasonable belief that the victim was consenting (S4)(1)(d))

Is penetration an act or a continuing act?

A continuing act (S79(2))

Why can only men and relevant transgender people commit rape?

There is a requirement of a penis

What does R v H [2005] tell us about clothing?

Touching of clothing can amount to sexual assault

Does sexual assault include touch amounting to penetration?

Yes (S79)(8)

What does R v Heard [2007] tell us about consent?

Drunken intent is still intent

Where is the definition of sexual found in the Sexual Offences Act?

Section 78

What is the Section 78 definition of sexual?

• If a reasonable person would consider the act sexual because of its nature (S78(1)(a))
• If a reasonable person finds that because of its nature it may be sexual and that because of its circumstances or the purpose of the person related to it it is sexual (S78(1)(b))

Is Section 78 subjective or objective?

Objective

Where is the two part test for sexual found?

R v H [2005]

According to R v H, what is the two-part test for sexual?

1. Because of the nature of the act, could the activity be considered sexual?
2. If yes, in view of the circumstances or purpose of the people involved, was the act in fact sexual?

How many routes can be used to establish consent?

3

Where is the general definition of consent found?

Section 74

What is the general definition of consent?

Agreement by choice, where the person has the freedom and capacity to make such a choice (S74)

What does Doyle [2010] tell us about reluctant agreement?

Reluctant agreement amounts to consent

What does Kirk [2008] reveal about consent?

Extreme economic duress can vitiate consent

What does Bree [2007] reveal about intoxication?

Drunken consent is still consent

What does R (Monica) v DPP [2018] reveal about deception, using Assange [2011]?

"Deception will vitiate consent only when the deception is so closely connected to the nature or purpose of the activity rather than the broad circumstances surrounding it."

What must also be proven about deception and consent?

The victim would not have consented to the sexual activity had they known the truth about the deception?

What does Assange [2011] show us about consent vitiation?

Deception about using a condom vitiates consent

What does F [2014] show us about consent vitiation?

Deception as to withdrawing before ejaculating vitiates consent

What does R v McNally [2013] show us about gender?

Deception as to gender vitiates consent

What does Lawrence [2020] show us about consent vitiation?

Lying about having a vasectomy does not vitiate consent

What does B [2007] show us about consent vitiation?

Failure to disclose a sexual disease does not vitiate consent

Why was consent vitiated in R v McNally [2013]?

While the sexual acts are physically the same whether committed by a male or female, the victim's freedom to choose to have sex with a boy or a girl was removed.

What does reasonable belief in consent actually mean?

Having regard to all the circumstances, including any steps taken by the defendant to ascertain whether the complainant consents. (S1(2))

What is Section 75?

Evidential presumptions

What are the elements of Section 75?

• The defendant did the relevant act (S75(1)(a))
• Any of the circumstances in S75(2) existed
• The defendant knew that these circumstances exitsed

It is then on the defence to rebut these presumptions

What are the Section 75(2) circumstances?

• Use of violence or fear of immediate violence at the time of or immediately before the relevant act (S75(2)(a))
• As above but against another person (S75)(2)(b))
• The complainant was unlawfully detained (S75(2)(c))
• The complainant was asleep or unconscious (S75(2)(d))
• The complainant could not communicate consent due to physical disability (S75(2)(e))
• The complainant had been spiked (S75(2)(f))

What is Section 76?

Conclusive (irrebuttable) presumptions

What are the two irrebuttable presumption?

1. The defendant intentionally deceived the complainant as to the nature or purpose of the relevant act (S76(2)(a))
2. The defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant (S76(2)(b))

Why was Assange [2011] a S74 issue, not a S76 issue?

Failure to wear a condom did not alter the nature of the act

Why was McNally [2013] a S74 issue not a S76 issue?

Deception as to gender alters neither the purpose nor the nature of the sexual act

What was Jheeta [2007]?

• D sent threatening texts to V pretending to be police officer advising her to perform sexual acts with him
• V was not deceived under S76
• But this was a S74 issue

How did Bingham [2013] address the conflict between Jheeta and Devonald [2008]?

Courts will follow Jheeta, applying S76 very narrowly

What did Ormerod argue about Lawrence?

It was decided wrongly - the physical act distinction is arbitrary

What did Finch + Monro find in their mock trial?

The law is too vague:

• Juries cannot understand reasonableness
  
• Juries cannot understand capacity

What did Herring argue about truthfulness?

Consent should be based on truth, so all lies should vitiate consent. On this basis, Monica was decided wrongly

Why was Sjölin critical of Section 75?

Section 75 is a closed list, which is bad for future development

Why was Sharpe liberal?

Rejection of McNally as it is harmful to trans people and bad public policy.  

"Why were Ashworth and Temkin critical of S74 ""freedom""?"

Freedom is a debated term, there is philosophical uncertainty over its meaning

What was Ashworth and Temkin's (2003) hierarchy argument?

It is unclear whether Sections 74 to 76 represent a hierarchy of circumstances under which consent is present.

Why were Ashworth and Temkin (2004) critical of the role of juries in deciding freedom?

Juries do not know what degree of freedom validates consent