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RAPE - Coggle Diagram
RAPE
EVIDENTIAL REBUTTABLE
Key Facts:
- route to determining V's non-consent
- D may raise evidence that either V did consent or D reasonably believed that V consented here
- s.75 of Sexual Offences Act 2003
s.75(2)(a) of SOA 2003
Any person, at the time or immediately before, using violence against V or causing V fear that immediate violence would be used against them ; threat need not emanate from D
- R v Dagnall (2003)Threat of immediacy
needs to be imminent as clarified by the cases of R v Ireland (1998) and R v Burstow (1998)why threat of rise falls under evidential and not conclusive is because some people want to use violence
- e.g. BDSM; R v Brown (1994)
Disregarded
violence is only to V so the folowing do not count;
- V's property
- V's friends/ family
s.75(2)(b) of SOA 2003
Any person, at the time or immediately before, causing V fear violence would be used or that immediate violence would be used, against someone else s.75(2)(c) of SOA 2003
V was, and D wasn't, unlawfully detained
- R v David T (2005)s.75(2)(d) of SOA 2003
V was asleep or otherwise unconscious
- D must know V is unconscious
- V must be fully unconscious
- unconsciousness has no specific cause
s.75(2)(e) of SOA 2003
Because of V's physical disability, V would not have been able to communicate to D whether they consenteds.75(2)(f) of SOA 2003
Any person had administered or cause to be taken by V, without consent, a substance which was capable of causing or enabling V to be stupefied or overpowered
aims to tackle date rape
V must take this involuntarily
only capable of stupefying, doesn't actually have to stupefy ; R v Minas (2003)
do not get confused with s.61 of SOA 2003: preparatory offence of administering a substance with intent
Manner of administration
- R v Bree (2007) ; D forces V
- R v Abbess (2004) ; D deceives V into self-administering
Demand for evidential burden:
Baroness Scotland: "in order for presumption to not apply, D will need to satisfy the judge from the evidence that there's a real issue of consent worth putting to the jury"
CONCLUSIVE PRESUMPTION
Key Facts:
- route to determining V's non-consent
- s.76 Sexual Offences Act 2003
s.76 of Sexual Offences Act 2003
s.76(2)(a): D intentionally deceived V as the nature or purpose of the act
OR
s.76(2)(b): D intentionally induced V to consent to the relevant act by impersonating a person personally known to V
Where V unilaterally has a false understanding and D doesn't intentionally deceive, look at s.74
'Intentional deception of nature'
nature = V must have believed a non-sexual act was taking place
- R v Williams (1877)
- R v Flattery (1923)
- R v DPP (2013) ; ruled as s.74 not s.76
'intentional deception of purpose'
- R v Linekar (1995)
even where D has multiple purposes, if V is aware of some of them, there can be no claim; R v Bingham (2013)
'intentional deception of identity'
extends to include short-term relationships ad gay couples; s.76(2)(b)
deception must have been active
criticism = no guidance for the term 'known personally'
GENERAL DEFINITON
Key Facts:
- s.74 of SOA 2003 = V consents if she agrees by choice and has the freedom and capacity to make that choice
'freedom to choose'
Physical coercion, which vitiates freedom to choose, is dealt under s.75(2)(a) of SOA 2003
- R v Wellard (1978)
- R v Kirk (2008) ; court ruled this a submission and so no consent non-physical coercion (which vitiates freedom to choose)
OLD LAW: R v Olugboja (1981)
- court ruled that consent is a spectrum; consent, reluctant acquiescence, submission, no consent --- it's between submission and reluctant acquiescence that there's a lot of grey area
- look at V's state of mind immediately before the act
NEW LAW: R v Watson (2015)
- equate acquiescence with consent
- conflated submission with bad consent
- ignore the courts previous definition of consent
Deceptions' effect on V's freedom to choose
Test: Was the active or passive deception closely connected to the nature/ purpose of the sex, rather than broader circumstances? If yes, there is consent
- R (Monica) v DPP (2018)
Where deception is present there's wrong but not rape
Same offences shouldn't be allowed with different offences and different labels
- R v Jheera (2008)
MENS REA
Mens Rea:
Mens rea = D intentionally penetrates V and D did not have reasonable belief in V's consent
'intentional penetration'
- recklessness does not suffice
'D did not reasonably believe V consented'
Satisfied when:
i) D intended V to lack consent
ii) D knew V lacked consent
iii) D was reckless as to consent
iv) D didn't consider whether V was consenting or not; OR
v) D honestly but unreasonable believed V consented
v) D honestly but unreasonably believed V consented**
Reasonable belief (hybrid test) test:
What is D's subjective belief about V's consent, measured against the objective standard of reasonableness applied by the jury/ courts
- objective limb has been somewhat subjectivised
- Relevant circumstances are age, sexual experience, learning disability; R v TS (2008)
Other circumstances
- mental illness does not count as a circumstance but might be beneficial in determining reasonable belief; R v B (2013)
- look at what steps D's taken to ascertain consent from V ; not compulsory
ACTUS REUS Actus Reus = D penetrates V's vagina, anus or mouth with his penis and at the same time V did not consent to the penetration'penetration'
- continuing act; s.79(2) SOA 2003
- trans people can be rapists; s.79(3) soa 2003
- vagina includes vulva; s.79(9) SOA 2003
- R v F (2002); vagina was held to mean whole vagina
- rape is applied where initial consent is revoked before penile withdrawal; R v Kaitmaki (1986)---confirmed this ruling in R v Leaver (2006)
Key Facts:
- old law was governed by the Sexual Offences Act 1956
- new law = Lord Falconer's Bill/ Sexual Offences Act 2003
- rape is now in s.1 of SOA 2003
- rape is a conduct crime
- Sexual assault where V is penetrated by an object that isn't a penis; s.2 of SOA 2003
- causing a person to engage in sexual activity without consent; s.4 SOA 2003