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š§ Mens rea š§ - Coggle Diagram
š§ Mens rea š§
2ļøā£ Fault with regard to consent
š 1. From Subjective ā Objective
š¹ Old law: Focused on Dās honest belief in consent (subjective).
š¹ New law (SOA 2003): Dās belief must be reasonable ā an objective test.
š§ s.1(1)(c): D is guilty if he does not reasonably believe that V consents.
š§© 2. Role of s.75 & s.76
Both sections apply to the fault element as well as the conduct element.
If either applies:
s.75 ā presumption that belief in consent was
not reasonable
(rebuttable).
s.76 ā conclusive presumption (cannot be rebutted).
āļø 3. Assessing āReasonable Beliefā
s.1(2):
Reasonableness assessed āhaving regard to all the circumstances, including any steps D took to ascertain whether V consents.ā
Itās not enough that D thought his belief was reasonable ā
the jury decides objectively if it truly was.
š¤ 4. Ciccarelli [2011] EWCA Crim 2665
D sexually assaulted V while she was asleep ā s.75(2)(d) presumption applied.
D argued he thought she would have consented, based on earlier flirting.
Judge found no evidence a reasonable person could think that; jury not allowed to consider the issue.
Appeal dismissed ā no possible reasonable belief where V was unconscious.
š”
Lesson: Unless D has credible evidence supporting reasonable belief, the judge can remove the issue from the jury.
š§āāļø 5. B [2013] EWCA Crim 3
D believed he was a āhealer with special powersā and forced intercourse, thinking it was spiritually justified.
Court: Delusional belief ā reasonable belief.
A belief caused by mental illness, delusion, or fantasy is never a legal defence to rape.
1ļøā£
Intention
to penetrate
=> If the defendant penetrates
unintentionally
(like during forplay), it's
not
considered to be rape
š R v Gabbai
Consensual vaginal intercourse.
D penetrated Vās anus without consent.
Appeal allowed: the conviction was quashed due to a failure to direct the jury on mistake as to the site of penetration.