Sexual offences

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  • Created by: Nikki
  • Created on: 18-04-15 18:49

General issues

Confusion over purpose of sexual offences --> to protect freedom or to enforce sexual discipline?

Ambiguity whether they exist to protect against offences against the person or as public order offences

No concept of sexual offences until Sexual Offences Act 195_

Rape --> initially thought of as property crime --> not until 19th century that began to be thought of as offence of violence

Hint of property crime still in law --> 'complainant'

Offences tend to happen in private so very often victim is only witness --> difficulties of enforcement 

Attitudes towards rApe

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Essence of sexual invasion

Autonomy principle --> individuals should be respected and treated as agents capable of choosing their acts and omissions

  • protect autonomy of individuals in sexual encounters --> criminal prohibitions to prevent unwanted sexual interference and to to criminalize those who culpably interfere with individual's sexual autonomy
  • negative reuqirement --> state's laws should respect each individual's right to pursue his or her sexual choices consensually with others --> laws should not unjustifiably inhibit the expression of sexuality in consensual and non-offensive contexts

Sexual expression should be consensual in giving and receiving

Denial of autonomy and bodily integrity

Physical and psychological effects

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Prosecuting ****

Stats

  • conviction rate for reported rApe about 7% in 2012
  • 33% say women who flirt are partially responsible for being rAped
  • 25% say same about wearing revealing clothing
  • 54% conviction rate at contested trials 
  • victim withdrew support in 39% of cases

Notes

  • rate of reporting rApe cases has risen hugely since 1977 which is reflected in stats
  • rise in reports is not resulting in rise in conviction
  • difficulties of proof 
  • sceptical juries
  • attrition --> most common in early stage - V decides they do not wish to proceed
    • many know the assailant --> worried about repurcussions
    • many don't want to give evidence in court
  • many cases are downgraded to lesser offence
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Rape law reform (pre-2003)

Marital rApe (R v R (1991)) --> retrospective application of law --> allowed by ECtHR because wrong to rApe wife even if not criminal 

Gender neutral rApe --> Criminal Justice and Public Order Act 1994 --> (also marital rApe formally acknowledged in legislation

Sexual history evidence (1999) --> basic rule --> you can't lead sexual history evidence of V except where it speaks directly to a rebuttal of a claim made by prosecution where that issue goes to something other than consent --> cannot use sexual history to to prove consent 

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Law prior to SOA 2003

SOA 1956

Conduct --> non-consensual penetration of vAgina or aNus by pEnis

Mens rea --> knowledge or subjective recklessness as to lack of consent

Mens rea = controversial in Morgan (1976) --> held to be fully subjective --> even if belief ridiculous, if honestly held then mens rea not fulfilled

In practice subjective and objective consent may not be that differenta s the jury is unlikely to be able to take a purely subjective view to a story which seems ridiculous

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Aims of 2003 Act

(1) to modernise law of sexual offences and bring it into line with contemporary culture

are high max penalties for consensual sexual conduct between children in line with modern attitudes?

(2) to create gender-neutral offences

(3) clarity

style of drafting and overlaps might bring this into question & underdefined key terms

(4) clarify the law relating to consent

(5) to secure appropriate protection for the vulnerable

offences between children could violate art 8?

(6) to provide appropriate penalties to reflect the seriousness of the crimes

(7) to play its part in reducing the attrition rate in rApe cases and to help to convict the guilty

but figures suggest this has not been successful

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Rape

s1

(1) A person (A) commits an offence if

(a) he intentionally penetrates the vAgina, aNus or mouth of another person (b) with the pEnis

(b) B does not consent to the penetration, and

(c) A does not reasonably believe B consents

change to include oral penetration with pEnis

since penetration is a continuing act from entry to withdrawal, offence can be committed by intentionally failing to withdraw pEnis as soon as non-consent it made clear

concept of recklessness plays no part in reformed offence

max penalty = life

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Assault by penetration

s2

(1) A person (A) commits an offence if-

(a) he intentionally penetrates the vAgina or aNus of another person (B) with part of his body or anything else

(b) the penetration is sexual

(c) B does not consent to the penetration, and

(d) A does not reasonably believe that B consents

can be committed by man or woman

max sentence = life

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Sexual assault

s3

A commits an offence if he intentionally touches another person (B), and:

The touching is sexual

B does not consent

A does not reasonably believe that B consents

s79(8) - touching includes touching

(a) with any part of the body

(b) with anything else

(c) through anything, and in particular includes touching amounting to penetration'

Touching someone's clothing is sufficient (H (2005))

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Causing sexual activity

s4

Intentionally causes another person (B) to engage in an activity, and:

The activity is sExual

B does not consent to engaging in the activity

A does not reasonably believe that B consents

Presumably can be affected by explicit or implicit threats, or by use of a position of authority or dominance, rather than actual physical coercion

By tricking D into believing V wants sEx when V does not, even if P cannot be convicted of complicity in rApe

Max sentences

  • penetrative = life
  • non-penetrative = 10 years
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'Sexual'

s78

Activity is sexual if a reasonable person would consider that:

(a) whatever its circumstances or any person's purpose in relation to it, it is because of its nature sexual

(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual

by implication must be third category --> activity that reasonable person would say is not sexual, and cannot be sexual whatever D's motives and whatever the circumstances

everything turns on the judgement of magistrates/jury --> uncertainty and inconsistency

should sexual motiation be enought to fulfil the offence, even in the third category? --> if we accept 2003 Act's view that it should not then are we sure that sexual motivation should be sufficien tin ambiguous cases falling within (b)?

R v H --> touching clothing (b) - George (1956) --> shoe fetishist (b) - Tabassum (2000) --> fake medical experiment to do with breast cancer

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Consent: conclusive presumptions

s76(2) --> 2 sets of circumstances in which absence of consent will be conclusively and irrebuttably presumed:

(a) D intentionally decieved C as to thenature or purpose of the relevant act

(b) D intetnioanlly induced C to consent to the relevant act by impersonating a person known personally to C

Crticisms

  • extent of 'known personally' is not clear
  • problems in both would be resolved by an offence of obtaining intercourse through false pretences (deception)
  • not clear that putting some deception cases here as conclusive presumptions, and leaving all others to be dealt with under general condition of consent is wisest approach

Nature - e.g. Williams (1923)

Purpose e.g. Green (2002)

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Evidential presumptions (1)

s75(2) --> 6 sets of circumstances giving rise to a rebuttable presumption of non-consent

(a) any person was, at the time of the relevant act or immediately before it began, using violence against or causing C to fear that immediate violence would be used against him

(b) any person was, at the time of the relevant act or immediately before it began, causing C to fear that violence was being used, or that immediate violence would be used, against another person

(c) C was, an D was not, unlawfully detained at the time of the act

(d) C was asleep or otherwise unconscious at the time of the relevant act

(e) because of C's physical disability, C would not have been able at the time of the relevant act to communicate to D whether C consented

(f) any person had administered to or caused to be taken by C, without C's consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling C to be stupefied or overpowered at the time of the relevant act

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Evidential presumptions (2)

Once prosecution establishes factual basis for one of the presumptions that presumption operates against D until the defence adduce sufficient credible evidence 'to raise an issue as to whether he consented'

Do not place burden of proof on D --> but requires defence to satisfy judge that there is a real issue of consent to put to jury

Once defence has done this, prosecution must prove absence of consent in normal way (s74)

Court less inclined to apply these presumptions to people in long-term relationships

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Consent (1)

s74

Defined using 4 other contested concepts

  • Agreement 
    • simple assent or full consensus based on knowledge?
  • Choice
    • consent should be informed?
    • CA declined to accept doctrine of informed consent in case where D failed to disclose that he was HIV positive
  • Capacity
    • Adequate degree of understanding of acts and their significance, which is particularly relevant in cases of mental incapacity and where C is intoxicated
  • Freedom
    • what degree of impairment should be taken to mean that any apparent consent was not free?
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Consent (2)

4 contested words don't provide sufficiently clear signposts to prevent inconsistent outcomes

Concept of agreement should be interpreted as emphasising that it is V's perception of choice and freedom that is crucial

Need for some kind of direction to juries not to assume that V did agree freely just because V did not say or do anything, protest or resist, or was not physically injured

Law might have been better drafted if it had focused on effects of various forms of threat, deception and other pressure in order to delimit the proper boundaries of consent

Practical implications --> jurors used 4 terms to justify different interpretations --> e.g. some social stereotypes perpetuated e.g. where woman intoxicated they assumed fault and consent

Certain cases which suggest strong argument that there should be a lesser offence, on ground that deception was not sufficiently fundamental, but absence of lesser offence in 2003 Act, such as obtaining agreement by deception may force courts to decide between rApe and acquittal

Threats of non-immediate violence fall outside rebuttable presumptions --> jury or magistrates would have to decide whether such threats negative agreement by choice

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Consent (3)

R v B (2007) --> V still consents to sEx even if they do not consent to being infected with HIV

Assange (2011) --> D deceived V as to whether he was wearing condom --> if A had decieved V as to whether he was wearing a condom, is it open to jury to find C not consenting? --> may be deception but not under s76 --> determined under s74 (leave to jury)

McNally (2013) --> assault by penetration --> is perception as to gender enough to vitiate consent? --> decided on s74 --> direction to jury that this is really very probable to vitiate consent

Controversy among transgender people --> offensive and risks criminalising them

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Absence of reasonable belief in consent

'whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents'

directs court to consider whether D attempted to verify his assumption or belief in consent

more difficult queestion is whether 'all circumstances' may undermine objective test 

intended as a move away from subjective test in DPP v Morgan

same structure of conclusive and rebuttable presumptions applies as it does to consent itself

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Effect of intoxication

Intoxication of C may be relevant in various ways

  • unconsciousness 
  • involuntary stupefaction
  • lack of capacity to consent

However, if C is in state of self-induced intoxication, and she still has capacity to consent, and chooses to do so, then this is not rApe. 

As a matter of practical reality, capacity to consent may evaporate well before C becomes unconscious

Intoxication may be relevant in deciding whether D had reasonable belief in consent

Failure of 2003 Act to deal expressly with intoxication is unfortunate

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