a) the extent of sexual offending- a) recorded data- 67000 recorded last year. 21% increase from last year. Operation Yew Tree- prosecution of historic offences may be making the figures expand. b) improvements of police recording practise- the policed were criticised so working better. Think these are underreported. Rape is focused on and the others are hard to find figures on.
b) Rape- Sexual Offences 2003- 1) a person commits an offence if- a) he intentionally penetrates the vagine, **** or mouth of another person with the penis, b) B does not consent to the pentetration and c) A does not reasonably believe B consents.
This changed the law substantially by adding mouth. Mens rea- if you have reasonable belief in consent then it is not ****.
1) Is **** harmful?
a) **** causes societal harm by promoting unacceptable attitudes to women- 'the wrong of **** has proved so difficult to define because the unquestionable starting point has been that **** is defined as distinct from intercourse, while for women it is difficult to distinguish between the two conditions of male dominance.' - MacKinnon 1989.
'**** law takes womens usual response to coercion- aquiescence, the despairing response to hopelessness of unequal odds- and calls that consent.' McKinnon 1989.
Feminest theories. Rape is about violence not sex.
'Rape exists any time sexual intercourse occurs when it has not been iniated by the women out of her own genuine affection and desire, because the pressure is there, and it need not be a knife blade against the throat, its in his body language, his threat of sulking, his clenched and trembling hand, his self deprecating humor or angry put down or silent self pity at being rejected. How many millions of times have women had sex 'willingly' with men they did not want to have sex with.' Morgan 1980.
'The wrong of **** is the 'expression of disrespect for the value of the victim... failure to secure consent is an injury to the acknowledgement of the victims value as a fully fledged person worthy of respect.' McGregor 2005.
'Rapes express very clearly the messgae of the inferiority of women. The ******, whether the violent ****** or the subtler 'date ******' sends the message that this woman is for his enjoyment, an object to be used for his pleasure... being a woman in western society, where sexual violence is high, means being vulnerable to **** and thereby 'hearing' the message about devaluing women. The indignation and resentment, combined with the fear that women have about ****, are based on this moral injury. The prevalance of **** makes the message pervasive... the ****** aims, whether consciously or not, to establish his mastery of men over women and the law unwittingly may be supporting him.' McGregor 2005.
b) **** violates autonomy (which is harmful). Right to choose what we do. 'The sheer use of another person'. What makes **** wrong and harmful? Dignity is important- more to do with the violation, which would mean men and women could be victims.
c) **** is a harmful violation of bodily integrity- if think only of autonomy then you forget about the physical problems. 'A recognition of the value of integrity invites the incorporation of implication of sexual abuse such as shame, loss of self esteem, objectification, dehumanisation. These are, of course, features central to the emerging social understandings of the wrong of sexual assault, and the ones which have led feminist scholars such as Robin West to equate **** with 'murder of the spirit'...
When combined with the emphasis on personhood as project- as a process of becoming which has an imaginary dimension and no definite end- the idea of integrity promises to escape the dangers both of essentialising a particular conception of the body and propagating a vision of victim status which accords access to 'truth'.' Lacey 1911. Need to understand about the physical being and the will of the person.
2) Intoxicated sexual intercourse- This is in s75(2) in Sexual Offences 2003. d) the complainant was asleep or otherwise unconsicious at the time of the relevant act. These are presumptions of lack of belief in consent.
CAN YOU CONSENT WHILST DRUNK?
a) factual (in nature- state of mind) vs legal consent (applying legal rules to factual scenarios). Consent is different in different situations.
S74 of SOA 2003- 'a person consents if he agrees by choice and has the freedom and capacity to make that choice.'
b) the decision in R v Bree 2007
'when someone who has had a lot to drink is in fact consenting to intercourse, then that is what she is doing, consenting' Sir Igor Judge P. This encapsculates the legal position, it is possible, not certain so a question for the jury.
b) can the capacity to consent disappear whilst conscious? R v H 2007
c) policy implications- criminalising drunken sex would mean mass criminalisation which is not something that is wanted.
d) the significance of sexual autonomy- positive= choices, negative= right to refuse. Protects choice. 'Setting high standards for what qualifies as consent will thus protect negative at the expense of posititve autonomy, and vice versa'- Munro 2005. - if you say a drunk woman cant consent to sex you are curbing her freedom.
e) Ched Evans case- R v Evans 2012- he was alleged to have ***** a woman in 2011. 'It was open to the jury to consider, as it seems to us, that even if the complainant did not in fact consent to sexual intercouse with either of the two men, that in the light of his part in what happened- the meeting in the street and so on- McDonald may have reasonably believed that the complaint had consented to sexual activity with him...
and at the same time concluded that the applicant knew perfectly well she had no consented to sexual activity with him (applicant). The circumstances in which each of the two men came to be involved in the sexual activity was quite different, so indeed were the circumstances in which they left her. These seem to us to be matters entirely open to the jury.' Lord Judge.
S1(2) of SOA 2003- 'regard all the circumstances, including any steps (the defendant) has taken to ascertain whether B consents'.
3) should there be degrees of ****? 'the **** and I am not, please, by any means minimising any kind of ****- but the **** was not violent. He didnt cause any bodily harm to the person, it was unpleasant, in a hotel room I believe. She was- had far too much to drink... and you know that is reprehensible but he has been convicted and he has served his time... now when he comes out, what are we supposed to do? Just actually refuse to let him do his job? Again even though he has already been punished?' Judy Finnegan speaking on Loose Women 2014.
'If an 18 year old has sex with a 15 year old and she perfectly willing, that is ****. Because she is under age, she cant consent. What you and I are talking about is we are talking about a man forcibly having sex with a woman and she doesnt want to- a serious crime.' Kenneth Clarke MP 2011- in practise we do have differences with different sentences.
George Galloway on Julian Assange- who was accused of the **** of two women.
a) unwanted sex in the absense of force- this negates all work saying people feel coerced when there is no force used. 'People generally, male and female, would rather be subjected to unwanted sex than be shot, slashed or beaten with a tire iron, whether measured by the welfare or by the dignity of the victim, as a general matter unwanted sex is not as bad a violence. I think it follows that those who press sexual advances in the face of refusal act less wickidly than those who shoot, or slash or batter.' Dripps 1992.
b) non consensual intercourse with force.
c) the possibility of a differentiated offence- have different categories? Different levels of culpability? Need to think about this when criticising the law.
4) low conviction rates: a problem or a myth? a) the figures- 64% conviction rate but only 6% attrition rate (ones that get through to court) . The conviction rate is a good as any other crime.
'The conviction rate is regulary and widely quoted without any proper explanation, analysis and context' Norfolk 2011.
'there has been progress in tackling ****, but the fact is that conviction rates are far too low.' Vera Baird QC, Solicitor General 2009.
'The criminal justice system is actively perpetuating a world in which **** goes unpunished.' Lees 2002.
b) the role of **** myths- 'the jury are regularly held responsible for their failure to convict men accused of **** because of the **** supportive attitudes jurors are thought to bring with them into court.' Duncanson 2014.
c) what are **** myths? 'predjucial, stereotyped or false beliefs about ****, **** victims or rapists.''nothing happened, no harm was done, she wanted or liked it, and she asked for it or deserved it' Burt 1980. This is prevalant in all areas of the process.
d) example one- victim blaming: not really any evidence for it. 'blaming the victim for sexual assault is a robust phenomenon' Tempkin 2007. This is a key problem with consent based legislation.
'the jury brings into the courtroom a lot of the attitudes we have been reading about.' Ken MacDonald QC Director of Public Prosecutions 2003-8.
Participants in attitudes study were asked to indicate whether they believed a woman was 'totally responsible, partially responsible or not at all responsible for being ***** if...' in an Amnesty International Survey 2005. In some circumstances said victim was to blame, but didnt use the word blame. Being asked about responsibility isnt the same. Responsibility may be shared but not blame.
Are responsibility and blame the same thing? 'Attributions of responsibility may well be shared but ultimately blame may not.' Finch 2007.
e) example 2: real ****: 'belief in the real **** stereotype is 'widely shared.' Temkin 2008. Stranger in a dark alley is widely shared. 'Mock jurors were willing to accept ****s 'do not involve a stranger in the bushes' and were very recpetive to the idea that the ****** did not need to be unknown to the victim.' Ellison 2010. Dont need to resist. Most dont think of **** in those terms so less myths. Problems do people only think of that or do they think its the worst? People in survey didnt want to rate **** seriousness, no consensus on what makes a serious ****.
f) example 3: she was asking for it: some behaviour wrongly interpretated such as asking home for a drink after a night out. Could mean consent, could mean likely, could mean blame: what is meant by it? Indicates increased willingness. Alison Saunders DPP- 'men must prove a woman said 'yes' under tough new **** rules.'- but saying put more emphasis on the mens actions. Want to change view, cant rely on these myths but move to defendants behaviour.
5) the relevance of the past- some likened talking about in court as being ****d again- judicial ****. Changes with different facts. Subjective before 2003- problem can say they did but may not actually- could use slept around example. Poor history may help subjective belief.
a) the move to an objective test for belief in consent- 'I a jury member and reasonable man would not hold this belief in those circumstances and so I do not believe that the defendant did either.' May not make much difference to the fact finding process. Dont have a reasonable prospect of conviction. Social attitude on past sexual history massively changes what you think is reasonable.
b) which beliefs are reasonable?
Intercourse with animals and corpses
a) the level of offending- sexual offence most was 9 in 2010 and 5 found guilty. 2007- corpses 3 trials= 3 guilty. Labelled as 'unnatural'- moral concept.
1) Intercourse with an animal is in s69 of Sexual Offences Act 2003- animal equivilant of assault by penetration. Equally criminal to allow an animal to have sex with you.
a) the history- Buggery Act 1533- 'the offenders being hereof convicted by verdict confession or outlawry shall suffer such pains of death and losses and penalties of their good chattels debts land tenements and hereditaments as felons do according to the Common Laws of this Realm. And that no person offending in any such offence shall be admitted to his clergy.' S1 Offences Against the Person Act 1828- ******- non capital punishment. s61 Offences Against the Person Act 1861. S12-13 of Sexual Offences Act 1956- buggery and gross indecency. Seen as much less serious 2-5 years. S69 in SOA 2003 is used now.
b) consent- no consent as have no capacity. Shouldnt judge animals by human standards- may consent. Submission isnt the same as consent. S74 SOA 2003- 'a person consents if he agrees by choice, and has the freedom and capacity to make that choice'
b) welfare- dont care about wellbeing with meat and medicine testing. Consent may not be relevant.
c) dignity and paternalism.
2) comparison with Sexual Penetration of a Corpse- not penile centric- only orrafice. S70 of SOA 2003. People matter more than live animals according to this. Same penalty as animals.
a) consent- cant consent but have no autonomy to be violated.
b) the offence principle and deep personal affronts- hearing about it is bare knowledge- not in this category. If hear someones had sex with your dead partner may feel like its been committed against you- such strong feelings.
c) the difference between people and animals.
d) are dead humans more important than live animals? Dont treat other humans with intrinsic value on an everyday basis so maybe not.
e) 'disgust shapes much of our intimacies and provides much of the structure of our daily routine, as we wash our bodies, seek privacy for our urination and defacation, cleanse ourselves of offending odours with toothbrush and mouth wash, sniff our arm pits when nobody is looking, check in the mirror to make sure that no conspicuous snot is caught in our nose hairs (Nussbaum 2004) Is disgust enough for criminalisation? Think about everything.
D) Extreme ***********-
S63 of Criminal Justice and Immigration Act 2008- criminalises possession and not the maker. It is broader for animals (Tiger **** trial). Defences in s65- accidential posession, legitimate reason eg social workers. S66 participation in sexual acts- consent excludes animals. Excludes those where consent isnt recognised in the law. Up to 2 years maximum sentence in s7.
a) the reasons for the offence- 'to try and break the demand/supply cycle and to discourage interest in this material which we consider may encourage or reinforce interest in violent and aberrant sexual acitivities.' Home Office Consultation of the Possession of Extreme Pornographic Material 2006. 1) protects individuals from being involved in dangerous and degrading situations. 2) important message that it is not acceptable to disensitise sexual degradation.
b) why criminalise the possession?
- The possibility of harm (individual and cultural)- role of morality should private immorality be criminal? Liberals is harm caused? If no then shouldnt be criminalised. May be physical harm. Harm to future autonomy- if people are desensitised to pain on women so are more likely to inflict it. Enhances their future autonomy if people dont think like this.
- The protection of future autonomy
- Legitimises abusive sex- if women seen as enjoying degredation their consent doesnt legitimise it. To allow consent to this legitimses abusive sex. Cultural harm- may confuse what consent is.
- Consent- living people, if genuinely consent then would make it difficult to show that there is harm. S66 only defence of consent where it already exists eg with S and M. May criminalise private and consensual acts.
- Links to more dangerous criminal behaviour- 'we recognise that accessing such material does not necessarily cause criminal activity.' Home Office 2005. Coots case. Watched lots of **** including necrophillia before he strangled a woman. Mark Bridger and Stewart Hazel- child murderers both watched violent and mysoginistic images. Government accepted no evidence of causal links. Correlation but not causation.
- Paternalism- shouldnt be allowed to degrade ourselves. Strong enough interest to invoke criminal law? Morality- sexual disgust involved in offences.
c) the impact of the provisions- Simon Walsh- lawyer who worked for Boris Johnson charged with 5 counts of possessing extreme ***********. S63 of 2008 act. Consensual acts of ******* and unopened story about boy Jason on his computer. All acts are legal to perform but are likely to result in serious injury to peoples genitals which is why illegal to watch. 90 minute trial but was acquitted. 'possession of images that depict acts likely to cause serious injury is illegal and the CPS prosecutes the law as it stands. We do not make the law and cannot change it.' 'To use this law to prosecute people who are in posession of images of private sexual acts between consensual adults which are legal to perform is nonsensical.'- Myles Jackman Walsh's lawyer.
Ian Watkins (Lost Prophets) pleaded guilty to having extreme ***********. Most cases prosecutions were beastiality. Normally prosecuted with another sexual offence.
d) stimulated ****- David Cameron had petitions given to add stimulated **** to the offences. Argued that it was a loopwhole that it was legal. Cameron said 'can only be seen as extreme' and 'poisonous'.