Non-Fatal Offences Against the Person Act 1997 & Sexual Offences

Definition: Application of force or threat of force without lawful justification or consent.
S. 2(1) NFOAP Act 1997: Guilty if intentionally or recklessly applies force or causes fear of immediate force without consent.
Force includes heat, light, electric current, noise, or any form of energy (s 2(2)).
DPP v K [1990]: Indirect application of force can constitute assault.
R v Ireland [1998]: Silent telephone calls can be assault.
R v Constanza [1997]: No temporal immediacy required for apprehended fear.
Tuberville v Savage (1669): Words can negate assault.
Apprehension of force is assessed objectively.
R v Lamb [1967]: No apprehension of force if no belief of danger.

S.3(1): Assault that causes harm is an offense.
Harm includes harm to body or mind, pain, and unconsciousness.
All elements of assault under s 2(1) must be proven.
Consent is a defense if given freely and for a lawful purpose; The People (DPP) v Brown [2018].
Strict liability offence.
R v Roberts [1972]: Foresight of actions causing harm not required, harm is causation issue.
R v Mowatt [1967]: Foresight of some minor harm may be necessary.

S.4(1): Intentionally or recklessly causes serious harm.
No need to prove assault first.
Consent is not a defence.
Serious harm: Injury creating substantial risk of death, disfigurement, or impairment of bodily function.
DPP v Kirwan [2005]: Serious temporary impairment is sufficient; consider medical attention outcome.

R v Brown & Ors [1994]: Consent not a defence for consensual sadomasochistic activity causing harm.
Laskey and Ors v UK (1997): Activities videotaped lose private-life protection due to inflicted harm.
R v Wilson [1996]: Branding with consent equated to a tattoo, conviction quashed due to no aggressive intent.
Collins v. Wilcock [1984]: Implied consent for physical contacts of ordinary life.
S 2(3) of the 1997 Act: Statutory recognition of “Doctrine of implied consent”.

Governed by section 2(1) of the Criminal Law (Rape) Act 1981.
Definition: unlawful sexual intercourse with a woman who does not consent, knowing she does not consent or being reckless as to whether she consents.
Maximum punishment: life imprisonment (s 48 of the Offences Against the Person Act 1861).

Section 2(2) of the Criminal Law (Rape) Act 1981: Honesty and Reasonableness
DPP v Morgan [1975]: Honest Belief - apply this principle where ANY ISSUE OF CONSENT arises
DPP v. O’R [2016]: Accused honest belief not if that belief was reasonable. However, a jury is under no obligation to believe an obviously false story

S9 Criminal Law (Rape) (Amendment) Act, 1990
Consent F3[9.—(1) A person consents to a sexual act if he or she freely and voluntarily agrees to engage in that act.
(2) a-h details when a person does not consent
(4) Consent to a sexual act may be withdrawn at any time before the act begins, or in the case of a continuing act, while the act is taking place.

Marital Rape at common law rape could be committed by any male person, with two exceptions
Amended by s5 of the C L(R) A 1990 (ii) a boy under 14 was irrebuttably presumed physically incapable of rape
Amended by s 6 of the C L(R) A 1990
R v. R [1991]: Husband can be convicted of rape where no consent
Fraud as to Identity of the Person DPP v C, [2001]: Procuring intercourse by impersonating a woman’s husband or boyfriend is rapeas consent is absent.

Compliant consented to a sexual act where a person goes beyond was consented to
Compliant is not aware of sexual matters where they are persuaded to have intercourse thinking it was some beneficial/medical treatment

Section 9 has now been amended by Criminal Law (Sexual Offences) Act 2017
So, while a woman does not have to resist sexual intercourse, if however, there is no evidence of resistance, that may be something the jury can consider to help determine if consent was present or not.

The question of disclosure arises where an individual engages in unprotected but consensual intercourse without informing the other participant that he has an infectious disease.

complaint of rape or sexual assault which is made at the first reasonable opportunity and which was not elicited by leading questions, can be led as evidence of the consistency of the complainant’s testimony
People (DPP) v. Brophy, [1992]: tat the complaint must have been made as speedily as could reasonably be expected and in a voluntary fashion.

Assault carries the same meaning as in section 2 ofthe Non-Fatal Offences Against the Person Act 1997

Objective Test , Gender Natural To prove this offence therefore
Sexual assault assault + indecency + intended indecency
Aggravating factors; serious violence, the threat of serious violence, grave injury or threat of grave injury, humiliation.

As with section 3 “assault causing harm” , consent is no defence since the decision of the High and Supreme Court in Minister for Justice, Equality and Law Reform v. Dolny, [2009] IESC 48

(a) penetration (however slight) of the anus or mouth by the penis, or (man to man or man to woman)
(b) penetration (however slight) of the vagina by any object held or manipulated by another person. (Man to woman or woman to woman)

If the child is aged between 15 and 17 years and actually consents to the sexual act, the accused has a defence if (a) he is younger or less than two years older than the child; and (2) was not, at the time of the alleged offence, a person in authority over the child; and (3) was not, at that time, in a relationship with the child that was intimidatory or exploitative of the child.