Sexual offences

Offence

• D commits offence if: intentional penetration of vagina/anus/mouth of V with his penis, V doesn't consent to penetration and D doesn't reasonably belive that V consents.

Actus Reus

• Can only be done by males/post-operative. As well as vagina can be 'surgically constructed'.
• Penetration seen as 'continuing act from entry to withdrawal'.
• As long as D is 10+ (over age of criminal responsibility) he's capable of comitting offence on V of any age. 
• Without V's consent: focus on subjective mind of V; was V a willing participant? McFall (pre 2003) illustrates: D kidnapped V (cohabiting w/her), D asked V for sex and V accepted fearing her safety (pretended to consent/faked enjoyment)= held NOT subjectively consenting. 

Definition of consent within SOA 2003

• S76: conclusive presumptions of non-consent: facts which if proved est. non consent 
• S75: evidential presumptions of non-consent: facts which if proved require D to provide some counter-evidence to prevent a finding of non-consent 
• S74: general definition of consent. 

Conclusive presumptions of non-consent: s76

• Only applies in 2 scenarios: D intentionally deceived V as to nature/purpose of act OR D intentionally induced V to consent to act by impersonating a person known personally to V

A. Deception as to nature/purpose of act

• Where V's misled as to physical mechanics of that act (purpose) e.g. Williams 1923 D deceived 16year old pupil into sex telling her it would improve her singing voice. His deception undermined V's apparent consent. 
• BUT nature/purpose are ambigious, with 'nature' if V understands the dynamics of the sexual act, deception as to associated risks aren't sufficient to engage the conclusive presumptions e.g. Dica 2004: lack of knowledge about D's HIV didn't amount to deception as to 'nature'
• Deception as to purpose of sexual act doesn't include deception as to V's purpose: Linekar 1995- D had sex with V promising £25, D never intended to pay. V's apparent consent wasn't effective due to D's deception, appeal allowed- consent wasn't undermined by D's deception.
• She wasn't deceived as to NATURE or PURPOSE.

B. Deception as to the identity of D:

• Only when D intentionally/actively pretends to be someone V personally knows. 
• Prevents use of presumption where D deceives V as identity e.g. job role AND narrow as only applies if V 'personally' knows them, so cannot impersonate a celebrity.
• If facts don't come under s76 conclusive presumptions, move to REBUTTABLE presumptions.

Rebuttable presumptions of non-consent: s75

• Don't est. lack of consent, if they're rebuttable the jury will find a lack of consent unless D provides evidence to rebut the presumption.
• Must prove certain facts arose and D had knowledge of those facts, burden is on D to provide evidence to rebut presumption.

1. Violence

• at time of relevant act/immediately before, using violence against V/causing V to fear immediate violence.
• Expands to include cases where D/another inflicts violence/threatens to inflict violence on a 3rd party e.g. D threatens to harm V's child unless she has intercourse.

C. Unlawful detension 

• Complainant was, and D wasn't, unlawfully detained at the time of the relevant act.
• Hard for D to rebut, where V submits to sexual acts whilst hostage of D/others.

D. Unconsciousness

• Complainant was asleep/otherwise unconscious at time of act. Only when V is fully unconscious, and D is aware of this: where V is intoxicated but short of consciousness it wont apply.

E. Disability preventing communication

• Due to C's physical disability, C wouldn't have been able at the time of the act to communicate to D whether they consented.
• Presumption reinforces idea from general consent that consent should be see as an active expression of willingness from V rather than lack of active opposition.

F. Involuntary doping 

• D/another causes V to consume unwanted stupefying substances by, e.g. spiking drug, enables V to be stupefied at time of relevant act. 

s74 non-consent

• V consents if he agrees by choice, + has freedom + capacity to make that choice.
• Where presumptions don't apply/where a presumption under s75 is rebutted by D and it's vital to apply general definition of consent under s74. 
• Some fall outside presumptions and it's clear for jury that V's apparent consent isn't effective e.g. Jheeta 2007: D sent V anonymous texts pretending to be the police telling her to continue having relatios with him to avoid fines. D charged w/****. D's deception undermined V's apparent consent. 
• 'Agrees by choice': positive sign of willingness. Absence of consent= absence of free choice.

Capacity

• Specific to V on the specific occasion. HoL test: A) a person must be able to understand the info relevant to making it, and B) must be able to weight that info in balance to arrive at a choice.

Freedom

• Undefined- discretion for court (inconsitency). V must have freedom from threats/deception from D.  Certain deceptions will fall under s76 and lead to conclusive presumption.
• Inconsistent: e.g. some say non-disclosure of HIV doesn't undermine consent VS cases where deception did undermine consent e.g. Assange (deception as to condom use).

Freedom

• Freedom from circumstances not caused by D, D may not cause lack of it but can take advantage of it to induce V to submit to a sexual act.
• Extreme examples of such pressures undermining V's freedom of choice, thus consent e.g. Kirk, homeless teen agreed to sex in exchange for £3 to buy food.

Mens rea as to penetration

• D doesn't commit **** unless at time of penetration he intends to penetrate V's vagina/anus/mouth. 

Mens rea as to V's non-consent 

• D's appreciation of non-consent (MR) is a separate requirement from non-consent in fact (AR).
• SOA incorporates a objective dimension as pre-2003 needed objectivity (reasonableness).

Presumptions of mens rea as to non-consent 

• Where facts come within s76 this est. D's mens rea as to V's non-consent; where facts come in s75 there's a rebuttable presumption D satisfies the mens rea.

General approach as to mens rea as to non-consent 

• MR satisfied where D doesn't reasonably believe V consents. Requirement of 'reasonable' represents objective approach. D satisfies this where: intends V to lack consent, know V lacks consent, is reckless as to consent, doesn't consider consent, honestly but unreasonably believes V consents.

• Test isn't purely objective- reasonable belief is qualified w/subjective considerations: take regard to all circumstances, including any steps D has taken to ascertain whether V consents.
• Allows jury to consider characteristics that affect D's ability to appreciate V's non-consent.

SOA 200: S2 Assault by penetration 

• D commits offence if: intentionally penetrates vagina/anus of V with part of his body/anything else, penetration is sexual, V doesn't consent to penetration, D doesn't reasonably believe V consents. 

ACTUS REUS OF S2

• D's act of penetration doesn't need to be done w/penis= ANY body part. Useful in cases where V doesn't know what object was used/didn't have capacity. 
• Penetration must be sexual: e.g. not evident would be medical examination. Is sexual if a reasonable person would consider that: whatever its circumstances/any person's purpose in relation to it, it is because of its nature sexual OR because of its nature may be sexual and due to circumstances/purpose of any person in relation to it it's sexual

MENS REA OF S2

• Same as ****: when penetrating V, D must: intend act of penetration, lack reasonable belief V is consenting. 
• NO corresponding MR as to AR requirement that D's conduct is sexual, need not be aware.

SOA 2003, S3 SEXUAL ASSAULT

• D commits offence if: intentionally touches V, touching is sexual, V doesn't consent to touching, D doesn't reasonably believe V consents.

ACTUS REUS

• V doesn't consent to contact from D (involves consideration of s76, 75, 74) + non-consensual touching of any kind. 
• Touching: with any body part/anything else/through anything. Even if V is unaware of it. 
• H 2005: touching 'through' clothes amounts to touching V. And can be by omission.
• Touching must be sexual: A) D's conduct is sexual by nature= sexual, B) D's conduct may be sexual + made sexual by circumstances/D's purposes= sexual

Mens rea of s3

• D's conduct must be intentional (so accidental touching won't suffice even if sexual by nature e.g. on a busy train accidentally touch breast).
• D must lack a reasonable belief that V's consenting to touching. No need for corresponding MR

S4 SOA 2003

• D causes V to engage in sexual activity without consent. Max life sentence if penetration involved, or 10years indictment.
• D commits offence if: intentionally causes V to engage in an activity, activity is sexual, V doesn't consent to engaging in activity, D doesn't reasonably believe V consents.

Actus Reus

• Focuses on D who causes V to complete non-consensual sexual activity. D need not have contact BUT causal link must be proven between D's conduct and V's engagement.
• V's activity as caused by D must be 'sexual' and must be without V's consent.

Mens rea

• D must intend the conduct which caused V to engage in non-consensual sexual activity.
• D must've lacked a reasonable belief that V consented to the sexual activity.

Problem areas regarding SOA 2003:

Boundaries of ****

• Non-consent of V is central to mischief of D's conduct; consensual penile penetration is a social good whereas non-consensual isnt= hard to prove a lack of consent and 'consent' is a tricky concept to define with the objectivity/consistency required.
• '****'- stigmatising effect can hamper reform e.g. expanded to include oral/anal penetration- label may be misunderstood. Entrenchment of **** muths and prejudicial attitudes.

Voluntarily intoxicated consent 

• General rule; intoxicated intention is still intention- as long as D displayed MR when intoxicated.
• Law also deals with V who is voluntarily intoxicated and gives consent; should we apply same hardlined approach or give V protection? (unclear) rebuttable presumption s75 that V isn't consenting if unconscious or tricked against her will BUT no presumption if V becomes heavily intoxicated but not unconscious= s74 is applied and jury decides if V consented.

Undue complexity

• SOA has mutiple elements for specific conduct- hard to follow e.g. voyeurism s67 is very detaield and can be hard to prosecute/identify by public.

• Identify criminal event e.g. first potential criminal event arises where D touches V then identify offence.
• Apply offence to the facts: Identify actus reus and mens rea of offence.
• ACTUS REUS: conduct element (was there penetration), circumstance element (did V consent?, do facts come within s76 if yes V lacked consent), if not s75 (do the facts come within rebuttable presumptions of non consent- if yes D must give evidence V consented, if not the burden is on prosecution), if NO (consider s74 on freedom and capacity).
• MENS REA: Did D penetrate V intentionally? Did D lack a reasonable belief in V's consent (presumptions of non-consent, if they don't apply or s75 presumption's rebutted, analyse MR on would a reasonable person in D's position have believed V consented, if yes continue to ask Did D hold this belief at time of penetration?
• CONSIDER DEFENCES: e.g. duress 
• CONCLUDE