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Sexual Offences: Rape, Reform - Coggle Diagram
Sexual Offences: Rape
What does sexual offences focus on?
- D's invasion of V's sexual autonomy
Codified in: Sexual Offences Act 2003 (SOA)
- Previous legislation was described as inadequate (Temkin 2000) and archac amd discriminatory (Lord Falconer, 2003)
- The SOA 2003 consolidated the law, modernising it with changing social attitudes
Actus reus
Actus reus of s.1:
- Requires the prosecution to prove that D penetrated the vagina, anus, or mouth of V with his penis, without V's consent
'Penile' penetration?
- Rape only committed where D penetrates V with his penis; if penetrates with something else, then he does not commit rape
- Sexual Offences Review considered removing requirement that penetration must be penile for gender-neutrality - However, limitations should remain , due to additional risks associated with penile penetration e.g., pregnancy disease transmission
- Women can be accessories to rape where they assist, leading to their liability for rape, but canot commit the offence as principle offender (Ram, 1983)
Penetration of the vagina, mouth or anus:
- Requirement of penetration interpreted broadly
- Penetration doesn't have to be substantial or repetitive
In vaginal penetration, requirement satisfied even where D penetrated only the vulva (SOA 2003, s. 79(9))
- Confirmed that D's act of penetration is a continuing act from entry to withdrawal (SOA 2003, s.79(2))- important where D fails to withdraw penis after consent is removed
- Interpreting penetration as a continuing act resolves this problem, extending the conduct element to allow for the coincidence of offence elements at any time between entry and withdrawal
Age or status restrictions?
- As long as D is over the age of 10 he is capable of committing the offence on V of any age
- Marital rape was only confirmed as rape in 1991
Without V's consent
- Requires that V lacked consent
Did V freely agree to penetration
- To analyse whether V lacked consent focus is on the subjective mind of V
- At the time of penetration, was V a willing participant to the sexual conduct
McFall [1994]:
- D kidnapped V
- D indicated that he wanted to have sexual intercourse and V accepted fearing for her safety if she refused
- V pretended to consent during the act and faked enjoyment
- D charged with rape
Held: guilty of rape- despite outward signs, V wasn't subjectively consenting
The definition of consent?
- Spread across three sections:
1) Section 76: set of 'conclsuive presumptions' on non-consent: set of facts which, if proved, will be enough to establish non-consent
2) Section 75: A set of 'evidential presumptions' of non-consent: set of facts which, if proved, require D to provide some couter-evidence to prevent a finding of non-consent3) Section 74: A general definition of consent
Section 76- conclusive presumption of non-consent
a) D intentionally deceived V as to the nature or purpose of the act (s.76(2)(a))) or
b) D intentionally induced V to consent by impersonating a person a person known personally to V
a) deceived as to the nature and purpose of the act:
- V is deceived as to the nature of the act where she is misled as to the physicality of the act; she is deceived as to the purpose of the act where she is misled why it should happen
Williams [1923]
- D a singing teacher, deceived his 16-year-old student (V) into having sexual intercourse with him, telling her it was a procedure to improving her singing voice
- Held: guilty of rape. D's deception as to the nature and quality of the act undermined V's apparent consent
If V understands basic dynamics of the sexual act, deception as to associated risks won't be sufficient to engage the conclusive presumptions: Dica [2004]
- D knowing he was HIV positive had unprotected sexual intercourse with two victims, infecting both with disease
- Clear that neither of the victims would have consented to intercourse if they had known about D's infected status
CA: appeal allowed, and retrial ordered- trial judge was wrong to remove the issue of consent from jury
- However, V wasn't deceived as to the nature of the sexual act was confirmed: no rape
Lineaker [1995]:
- D had sex with V, a sex worker having promised to pay £25
- D never intended to pay
- D charged with rape on basis that V wouldn't have consented if she had known D had no intention of paying
Held: CA- appeal allowed; consent was not undermined by D's deception
- V was not deceived as to the nature or purpose of D doing so
- So, what does purpose mean?
- It is known that V will be deceived as to the purpose of an act if she is led to believe that it is being done for non-sexual reasons
- Devonald [2008]:
- Suggests that V is deceived as to purpose if (despite understanding sexual context) V is deceived as to D's motives
- V (16 year old boy) invoved in relationship with D's daughter, relationship ended and D sought revenge
- D posed as young woman on internet formed a link with V, persuaded V to masturbate in front of a webcam and planned to humilate V
- D charged with an offence under s.4 SOA 2003 (causing someone to engage in sexual activity)
Held: guilty of sexual offence- s.76 presumption applied: V was deceived as to purpose in relation to sexual act
b) deception as to identity of D:
- D intentioanlly deceives V as to his identity
The presumption wont apply where D pretends to have attributes like a well-paid job or be a celebrity
- But where D intentionally and actively pretends to be someone who V knows like her husband, boyfriend, friend etc
- Issues: limitations of the presumptions: is it less serious for V to be deceived as to the identity of D if he pretends to be her favourite musician rather than her boyfriend
-
s.74- General definition of non-consent
- If s.76 and s.75 do not apply, then definition of consent under s.74 applied:
- For the purposes of tjis part, a person [V] consents if he agrees by choice and has the freedom and capacity to make that choice
- Jheeta [2007]:
- D sent V anonymous text messages over years, pretending to be police, telling her to continue to have a sexual relationship with D to avoid fines
- D charged with rape
- Held: guilty of rape, V’s lack of consent is clear on the basis of s.74 alone.
- D hasn’t deceived V as to the nature (physical dynamics of sex) or the purpose (his sexual gratification), so the conclusive presumptions of non-consent don’t apply
- Equally, the facts don’t fall within rebuttable presumptions.
- So, V’s lack of consent is clear on basis of s.74.
Capacity?: C [2009]
- V had history of mental disorders turning themselves into manic episodes and delusions for her safety
- D befriended V, gave her cocaine and made her perform acts of oral sex on him and another
- V claimed she only consented out of fear for safety
- Held: guilty of s.30 offence – capacity can be undermined where V understands the nature of the act, but mental condition prevents her from making a real choice.
- Lady Hale: ‘one doesn’t consent to sex in general. One consents to this act of sex with this person at this time and this place’
HoL set out test for valid decision-making:a) a person must be able to understand the information relevant to making it, and
b) must be able to weigh that information in the balance to arrive at choice
- V may also fail the test for capacity set out in C [2009] if she is heavily intoxicated
Freedom: V must have sufficient freedom
- Freedom isn't defined in SOA 2003 and have flexibility for courts and juries to interpret this term. But this breadth can have inconsistent interpretations
- Monica v DPP [2018]
- Undercover police ofÏcer under his assumed identity conducted a sexual relationship with V (protestor)
- Held: deception of V didn’t vitiate consent within s.74
- However, there have been cases where deception (outside conclusive presumptions) has been enough to undermine consent within s.74:
Deception asto birth control: Assange v Swedish Prosecution [2011]:
- D stealthed a woman (removing condom before/during sex without telling them)
- Held: dual criminality requirement was met
.- 76(2)(a) isn’t relevant to an allegation of stealthing because lying about a condom isn’t deceit as to the nature and purpose of the sex act
- However, stealthing could vitiate consent as she only consented to sex with a condom.
Deception as to gender: McNally [2013]:
- Deception as to one’s gender can vitiate consent under s.74 SOA 2003.
- D and V online relationship- D was a girl, but V believed D was a boy because called herself Scott and wore male clothing-
- In-person D penetrated V with a dildo on multiple occasions- V claimed she wouldn’t have consented if she knew D was a girl
- D convicted of offence of assault by penetration under s.2 SOA 2003
- Levenson LJ: deception of gender is relevant because it altered the sexual nature of the act of penetration.- BUT deception as to wealth, being single, promise of marriage and so forth would not vitiate consent
Deception as the birth control: Lawrence [2020]
- D knowingly and falsely assured V that he had a vasectomy and no condom required
- V consented to sex being reassured by D
- D charged with rape
- Held: CA, appeal allowed
- V wasn’t deceived as to the sexual intercourse itself but only ‘broad circumstances’
Lawrence [2020] importantly:1) Court explicitly rejects express/implied distinction as a mechanism for identifying legally relevant deception, stating that whether D’s deception is express or not ‘makes no difference2) New test is derived from the case, distinguishing deception as to the physical sexual activity (will undermine consent – promise not to ejaculate/wear a condom) from deception as to broader circumstances (will not undermine consent – promise as to HIV status)
- Less time is taken to explain why this tests strikes the correct moral distinction in terms of deserved liability – so, supreme court should clarify this area.
Freedom to make choice/pressure:
- Kirk [2008]: Homless teenager agreed to sex with D in exchange for £3.25 for food
- Held: V wasn't consenting
- Extreme financial pressure can vitiate consent, albie willing submission
Mens Rea
Mens Rea of s.1 rape:
- D's wrongdoing, as opposed to the compensation of V
- If actus reus completed, V suffered a serious wrong
- But only if the mens rea is satisfied will the law attribute that wrong to D and constituting the offence of rape
Mens rea as to penetration: D doesn't commit rape unles at time of penetration he intends to penetrate V's vagina, anus or mouth
- Mens rea as to V's consent: D must have mens rea as to V's non-consent (only D's mens rea)
Criticism of this focuses on case: Morgan [1976]:
- D and others had sex with V after being told by her husband that they should and resistance from her would increase her enjoyment
- Each was charged with rape and claimed they honestly (yet unreasonably) believed V consented
- Held: Guilty of rape
- However, HoL stated that belief in consent doesn't have to be reasonable (as long as it is honest); no jury could have found their belief to be honest
Mens rea of s1: Penetration must be intentional, and D did not reasonably believe that C was consenting.
- s76 and s75 create presumptions of non-consent in the context of actus reus and mens rea
- Thus where facts of a case come within s.76, this will establish D's mens rea to V's non-consent and where facts some from s.75 there will be a rebuttable presumption that D satisfies the mens rea
- General approach to mens rea as to non-consent: Where presumptions do not apply at all we must consider general approach
- The requirement of reasonable belief in consent represents a largely objective approach to mens rea and D will satisfy this aspect where he:
- Intends V to lack consent
- Knows V lacks consent
- Is reckless as to consent
- Doesn't consider consent or even...
- Honestly but unreasonably believes that V consents
- D's voluntary intoxication will not be a relevant characteristic (i.e. the test is whether a reasonable sober person would have believed that V consented)
Defences
- Intoxication: D explains their lack of mens rea on basis of intoxication
E.g: D stabs sleeping friend, drunkenly mistakes friend for a dummy- in this example D lacks subjective mens rea for an offence against the personSane automatism: D explains her lack of voluntary meovement (and associated lack of mens rea) on basis that they were rendered totally incapacitated by external circumstances affecting themE.g. D drives dangerously when attacked by bees, or punches V whilst suffering concussion- in this example D lacks essential element of voluntariness that is necessary for all offencesInsanity (as a denial of offending): D explains their lack of mens rea on the basis of what the law labels insanity, including all medical conditions that cause some bodily malfunctioning, which prevents D understanding the nature/quality of her acts
- E.g: D kills V under the insane delusion that she is breaking a jar- in this example D lacks subjective mens rea for any offence against the person
The role of prior fault:
- When discussing prior fault, necessary to distinguish between two points in time:
- T1: when D performed a blameworthy act (e.g. D became dangerously intoxicated)
- T2: when D completed the catus reus of a relevant offence but lacked mens rea elements due to intoxication/automatism/insanity
Intoxication:
- D's conduct when intoxicated may not reflect their character when sober
- Being intoxicated is not and never has been a defence to criminal offences!!
- ‘Being drunk’ may be relevant at sentencing but not an answer to a criminal charge.
- Intoxication as a denial of offending:
- Intoxication rules become relevant whereas a result of intoxication at T1, D lacks the prescribed mens rea for the crime charged at T2
Kingston [1994]:
- P hired to take compromising photos of D to use for blackmail- P invited V (15), gave him alcohol and drugs and left him asleep
- P drugged D’s coffee and encouraged D to indecently assault V as he slept, and D did so
- D was charged with indecent assault.
- CA appeal allowed and found no liability: D only committed the offence as a result of P drugging him, and thus lowering his inhibitions.
- However, HoL Held: conviction reinstated – drunken intention is still an intention.
Notes:
- D’s intoxication only becomes relevant to liability if as a result of that intoxication an element of the offence charged is absent.
- E.g., D denies intending to cause harm when they claim that they were so drunk they didn’t mean to damage V’s property or D may deny voluntary movement (intoxicated they lose consciousness) – in cases of this kind, D’s intoxication is relevant as a denial of offending.
- Prior-fault intoxication as a method of inculpation:
- Where D is responsible for bringing about that sate of intoxication, there are strong policy reasons in favour of finding liability
- Common law developed prior-fault intoxication rules capable of substituting for missing mens rea and establishing liability.
- Where these elements are satisfied, D will be liable as if the missing elements were satisfied:
- Element 1: D must be voluntarily intoxicated
- D must have acted voluntarily in briging about a state of intoxication at T1, resulting in a lack of mens rea when completing the actus reus of an offence at T2
- What is essential is demonstrating D's T1 choice of becoming voluntarily intoxicated
- Element 2: D's offence must be one of basic intent:
- Established that D was voluntarily intoxicated at T1, focus shifts to the potential offence of which D committed the actus reus (but lacked mens rea) at T2
- If D is charged with a crime that is legally classified as a ‘specific intent’ offence and the prosecution cannot prove mens rea at T2, then D is not guilty of that crime regardless of her intoxication.
- However, if D is charged with a crime that is classified as a ‘basic intent’ offence, then D may be liable for that offence on the basis of her prior-fault in voluntarily intoxicating herself at T1.
Element 3: D must have taken a dangerous drug: D has made a chouce at T1 (voluntary intoxication) that has led to potential commission of a relevant offence at T2 (basic intent offence)Central to Bailey [1983]:
- D, a diabetic, failed to consume sufficient food after injection of insulin and committed series of serious attacks whilst in an intoxicated state
- Common knowledge that those who take alcohol and drugs excessively may become aggressive and do unpredictable things. Same cannot be said for man who fails to take food after insulin injection
Hardie [1985]:
- D took 5 sedative drugs to calm himself after partner told him to leave
- D returned intoxicated by tablets, set fire to wardrobe in house
- D charged with arson with intention or recklessness as to endangerment of life
- CA: allowed appeal- Valium wasn't a dangerous drug and D had no reason to believe it would lead to the actions it caused
Difference between basic and specific intent offences:DPP v Majewski [1977]:
- D (intoxicated with dangerous drugs and alcohol) involved in a bar brawl and assaulted people
- D also assaulted police officers
- D charged with assault occasioning ABH and assaulting a police officer
- D claimed he lacked mens rea due to intoxication
- HoL: guilty of assault offences—basic intent offences, so D's voluntary intoxication can be used as a substitute for the mens rea he lacked at the time of conduct
Development of law: Heard [2007]:
- D was drunk and exposed penis + rubbed it on a police officer's leg
- D claimed to lack mens rea due to intoxication (lack of intentional touching)
- D charged with sexual assault
- Held: guilty of sexual assault, holding that sexual assault is a basic intent offence
- Courts in Heard provided alternative test for identifying basic and specific offences:
- [C]rimes of specific intent are those where the offence requires proof or purpose or consequenc, which are not confined to, but amongst which are included, those where the purpose goes beyond the actus reus (sometimes referred to as cases of 'ulterior intent)
Intoxication as a defence
- D's voluntary intoxication can create liability where they lack mens rea it can also affect their use of various defences
- The general rule is that, when relying on a criminal defence, D may not rely on an intoxicated mistaken belief
- This is the case even where a defence, as with self-defence, would otherwise allow D to rely on mistaken and even potentially unreasonable beliefs
- E.g., D may rely on self-defence if she honestly but incorrectly believes force is necessary to repel an attack from V, but she may not rely on an equivalent intoxicated belief
- Jaggard v Dickinson [1981]:
- D told by friend to use house as her own
- D returning home whilst drunk mistakenly tried to enter identical house on the same street and when way was blocked by owner, she gained access by breaking window
- D charged with criminal damage and raised defece that she believed that at the time the house belonged to her friend. And he would've consented to damage if he knew circumstances
- Divisional Court held: appeal allowed- D may use defence even if her belief is based on an intoxicated mistake
Specific intent offences and Dutch courage:
- Where an intoxicated D lacks mens rea for a specific intent offence, this is usually the end of the matter: D’s intoxication cannot replace her lack of mens rea, so there is no liability for that offence.
- However, there is one possible exception to this rule. This relates to (so-called) ‘Dutch courage’ cases, where D becomes intoxicated at T1 in order to commit the specific intent offence at T2. - In such cases, D’s blameworthy conduct is not merely her choice to become voluntarily intoxicated, but her choice to do so in order (i.e., with intention) to commit the offence
AG for Northern Ireland v Gallagher [1963]:
- D decided to kill his wife, so he drank lots of alcohol beforehand.
- D claimed that due to his intoxication he lacked mens rea for murder as a specific intent offence - D charged with murde
- HoL Held: trial court correctly focussed on D’s mens rea at T2. Thus, this was simply a case where intoxicated mens rea is still mens rea.
- D’s conviction in this case did not require an examination of ‘Dutch courage’ because, despiteD’s intoxication, it was found that D intended to kill at the time (T2) of killing his wife
Reform
- Sexual offences are emotional and highly sensitive topics, with continued low reporting and conviction rates
- The SOA 2003 represented a more modern reform of the previous law, welcoming gender-neutrality, broadening liabilityand use of modern language
- However, SOA doesn't represent final word in the reform and debates continue how to improve the law
- Voyeurism (Offences) Act 2019: A new offence was created of 'up-skirting', this act amends SOA 2003 by inserting a new section 67A. Also, further reform in this area could embrace wider forms of cyber sexual abuse such as revenge porn
Weakness within current offence:Boundaries of rape:
- The offence of rape (s.1) is most well known and highly stigmatised within the criminal law.
- In the current law, non-consent of V is central to the mischief of D’s conduct: consensual penile penetration is a social good, whereas non-consensual is rape.
- Central role of non-consent can be problematic, especially when trying to prove a lack of consent: in the absence of force, there will be little evidence.
- Also, problematic that consent is a difÏcult concept to define with the degree of objectivity and consistency that is required for such a central role.
- The current law attempted to mitigate this with definition across three sections (s.74,75,76),
- But despite this, the definition is criticised for its lack of precision.
- Conghan (2019) suggests that redefining consent to provide a vigorous concept of the task
Label of 'rape' and role within potential reform:
- On one hand, the powerful label and stigmatising effect can be positive of the criminal law: sending a clear message about unacceptable behaviour and condemning those who offend.
- However, this can hamper reform. For example, the definition of rape has been expanded to include oral and anal penetration; commentators argue whether it will be acceptable within common meaning of rape (Home Office, Settng Boundaries, 2000).
- By widening the offence beyond its common understanding, the label might be misunderstood, and jury may be less inflicted to find liability outside of their personal understanding (Ashworth and Temkin, 2004).
- Furthermore, ingrained common understandings of offences like rape can lead to ingrained rape myths such as that stranger rape is more serious and prejudicial attitudes relating to V’s sexual history (Elvin, 2008).
- Which is why in Canada they abandoned the label of rape entirely (Gotell, 2010).
Voluntary Intoxicated Consent:
- General policy of law towards D who acts in a state of voluntary intoxication is that an intoxicated intention is still an intention, but if he possesses the required mens rea when intoxicated his liability can be clear
- Furthermore, law will have to deal with V who has become voluntarily intoxicated and provided some form of consent to sexual activity with D
- In this case, should we follow the same harsh approach applied to D and hold intoxicated consent being consent or should we provide additional protection for the intoxicated V who has albeit voluntarily become vulnerable to sexual abuse?
- Current law doesn’t provide a clear answer to this question.
- The SOA 2003 creates a rebuttable presumption that V is not consenting where V is intoxicated that she’s unconscious. However, no presumption will apply where V became heavily intoxicated but not yet unconscious. In this case s.74 will be applied and jury must decide on V’s consent and intoxication (Bree [2007]).
- It is a continuous debate whether V should be provided with more protection, or the law should send a clearer message to men in particular that taking sexual advantage of intoxicated people isn’t acceptable (Kamki [2013])
Undue complexity:
- Modern criminal statutes have become longer, and it is not a bad thing completely because drafting in detail increases the likelihood that the public understands the nature of the offence and are better warned + clarity of drafting would reduce the need for appeal courts to clarify ambiguous offence elements.
- However, there is criticism towards SOA 2003 and its unduly complex drafting.
- The SOA 2003 doesn’t define offences simply in relation to general harms but provides multiple elements that set out specific form of conduct that will be caught by the offence.
- By doing this, individual offences can be difÏcult to follow and have to be extra careful to work through the elements when applying to cases.
- For example, offence of rape going through extensive statutes.
- Where offences are set out in this much of detail, we may question how effectively they are providing a warning to our society (Child and Ormerod, 2021).
- They’re likely to cause problems in practice with prosecutors identifying wrong offences and/or failing to apply each of the essential elements (Gillard v The Queen [2014])
-