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Non Fatal Offences Against the Person: Consent and Sexual offences…

- - - - The rationale for imposing criminal liability upon the defendant in such circumstances was expressed as the need to protect society against a 'cult of violence' which could 'breed and glorify cruelty'.
      - There were also concerns of the transmission of HIV and other STDs and the corrupting effect that such behaviour could have on younger members of the society
      - 1. In ascertaining public interest, how far should the Law Lords take into account society's morals?: If it is not morally right to encourage deliberate injury through sado-masochistic activity, then the majority would be correct in the decision set out in Brown
      - 2. Was the HoL decision in Brown creating new law, or was it giving effect to the Will of Parliament?: Again, this is difficult to answer, but the application of the defence of consent is probably correct as there has been traditionally a reluctance to extend its boundaries (partially because of the difficulties in deciding whether consent was freely given by a victim capable of understanding the nature of the act)
      - 3. Was this a situation where respect for individual freedom should have been outweighed by the need to protect society from such conduct?: The aspect of the risk of future younger inexperience individuals were criticised and it was compounded by R v Wilson
- - - - 1. The Act dispenses with the phrase of sexual intercourse, which was used to define rape under the SOA 1956.
      - 2. The SOA 2003 is clear in only requiring slight penetration (s.79(9)) and it places the authority of Kaitamaki on a statutory footing
      - 3. The SOA 2003 dispenses with gender specific words to ensure that the offence of rape can apply to those who have undergone gender reassignment surgery
      - 4. The SOA 2003 defines consent for the first time (s.74) and provides for evidential and conclusive presumption as to consent (s.75 and s.76) s.76 would place cases such as Flattery, Williams and Linekar on statutory footing, whilst incorporating the approach adopted in Tabassum in relation to the fraud of the act
      - 5. s.75 has placed cases such as Larter on a statutory footing
      - The SOA 2003 has codified much existing case law, but the presumptions are not easy to explain to a jury. It is difficult to explain why deception qualifies as a conclusive presumption, but the use of violence only an evidential presumption. This difficulty is especially evident when one considers the approach taken by the House of Lords towards sexual gratification by violence in Brown
      - One problem which has not been addressed by the Act is that of intoxication and consent. Although the Act deals with cases where the complainant is unconscious or asleep through the use of evidential presumptions under s.75, situations in which the defendant has sex with an intoxicated complainant have not been directly addressed (Bree). As such the issue of consent is left to the jury and recourse must be had to the definition of consent Consent will therefore be a question for the jury who will receive no detailed direction on consent from the trial judge.
        
        Another problem concerns submission and consent. Whether submitting to sexual intercourse as a result of non-violent threats constitutes consent is not addressed by the SOA 2003. (Olugboja). Although the Act is to be commended for codifying the existing legal principles which have evolved under the common law, it leaves many situations unexplored which must now be dealt with by the broad definition of consent under s.74 and the interpretation of the jury
        
        Another significant amendment to the definition of rape concerns the mens rea. The SOA 2003 contains no mention of the concept of recklessness, but rape requires a reasonable belief that the complainant was consenting. It dispenses with the subjective test under DPP v Morgan in relation to a mistaken belief in consent. The old law requiring a honest belief in consent has been replaced by an objective requirement that the belief is reasonable