Sexual Offences Lecture 9 Offences against the person

Sexual Offences Lecture 9

�Offences against the person �Rape �Sexual Recap assault

�The main sexual offences are: �Rape of a child under 13 �Offences relating to prostitution �Incest �Bigamy �Sexual Assault Sexual Offences

Sexual Offences

�Sexual Offences Act 2003 �Key points: �Enacted to protect children – child sex abuse cases �Aims to protect vulnerable victims from abuse & exploitation �Aims to also be fair and nondiscriminatory Sexual Offences Act 2003

�Rape �Most serious sexual offence �Indictable only offence �Carries a maximum sentence of life imprisonment Sexual Offences - Rape

� Definition of Rape: � � Section 1(1): “A person (A) commits an offence if- � (a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, � (b) B does not consent to the penetration, and � (c) A does not reasonably believe that B consents”. Sexual Offences - Rape

�Actus Reus: � The AR of rape is committed where a MAN has sexual intercourse with a man or woman without that person’s consent. � Thus: the actus reus of rape involves not only sexual intercourse, but also the absence of consent. � AR: has 2 ELEMENTS: � 1. Penetration of the vagina, anus or mouth of another person, with the penis. � 2. Lack of the victim’s Consent. Sexual Offences - Rape

�Significance of the Actus Reus: �Rape can only be committed by a man �A woman cannot commit rape but can be charged with being an accomplice: �DPP v K & C [1997] �The victim can be a man or woman (S 142 Criminal Justice & Public Order Act 1994) Sexual Offences- Rape

�Rape is an Action crime �Oral rape is treated as seriously as vaginal or anal rape – See Ismail [2005] �Slight penetration is all that is required (Allen [1839]; Lines [1844]) �Rape is a continuing act offence – Kaitamaki [1985] Sexual Offences - Rape

�Section 1 (2) SOA 2003: �‘Whether a belief is reasonable is to be determined having regard to all circumstances, including any step A has taken to ascertain whether B consents’. Sexual Offences - Rape

Sexual Offences - Rape Can a man rape his wife?

�In 1700 s the Courts had decided that a husband could not be guilty of rape �It was suggested that a wife had willingly entered into the marriage contract and all that entails… �Archaic? Sexual Offences - Rape

�There are some cases that have slowly eroded this immunity: • A separation Order in force (Clarke 1949) • Decree Nisi (O’Brien 1974) • A Non-Molestation Order (Steele 1977) Sexual Offences - Rape

�R v R [1991] the House of Lords upheld a husband’s conviction for rape of his wife �Significant – why? �Case overturned centuries of spousal immunity �Brought the law in line with 20 th Century Sexual Offences - Rape

�Consent �Once it is established that sexual intercourse took place �It must be established that sexual intercourse occurred without the CONSENT of the victim �S 74 SOA 2003 defines consent �Linekar (1995) Sexual Offences - Rape

�What negatives consent? �S 76 (2) (a) SOA �Deception as to the nature of the act to gain consent: �Flattery (1877) �Williams (1923) Sexual Offences - Rape

�S 76 (2) (b) SOA 2003 �The identity of the agent �The S 142 (3) CJPOA 1994 speaks of impersonation of husband �Elbekkay [1995] �Malone [1998] Sexual Offences - Rape

�Key points: �There is a distinction between a victim who is submits to sexual intercourse under pressure and �One who consents to it �Olugboja [1991] Sexual Offences - Rape

�Dunn LJ in Olugboja [1981] observed: �‘…that there is a difference between consent and submission; every consent involves a submission, but it by no means follows that a mere submission involves consent…’ �R v Larter & Castleton [1995] � R v Mcfall [1994] �R v Blacklock [2006] Sexual Offences - Rape

�Mens Rea �Defined in Section 1 (2) of SOA 2003: � ‘… Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps [the defendant] has taken to ascertain whether [the victim] consents. ’ �What are the elements of mens rea? Sexual Offences - Rape

�Elements of Mens Rea: �Intentional penetration of v’s vagina , anus or mouth and �That the D did not reasonably believe that the victim was consenting Sexual Offences - Rape

� Burden of proof � Usually upon the prosecution � Test is beyond reasonable doubt � BUT the SOA 2003 has REVERSED this burden in relation to consent � Presumption is that the victim was not consenting � S 75 – Rebuttable presumption � S 76 – Irrebuttable presumption � Q- Can reasonable mistakes negative Sexual Offences - Rape mens rea?

�Governed by S 2 SOA 2003 � 1 Sexual assault by penetration: � Sec. 2(1): “A person (A) commits an offence if�(a) he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else, �(b) the penetration is sexual, �(c) B does not consent to the penetration, and �(d) A does not reasonably believe that B consents. ” Sexual offences – Sexual Assault by penetration

�Actus Reus: Elements include: �Mens Rea: Elements include: �Penetration of V’s vagina or anus. �With a body part or anything else. �Penetration must be ‘sexual’. �V does not consent. �Intent to penetrate V’s vagina or anus. �Lack of reasonable belief in V’s consent Sexual Offences – Sexual Assault by penetration

�“Sexual” is defined in Section 78 SOA 2003 �Coomber [2005] � Penetrated anus of a sleeping boy with his finger. Held: Guilty �Cunliffe [2006] � Penetrated Guilty 14 year old girl’s anus with finger. Held: �Lyddaman � Openshaw [2006] J: “The question for the jury was whether it was penile penetration to make D guilty of rape ……… or digital penetration to render him guilty of sexual assault by penetration”. Sexual Offences – Sexual Assault by Penetration

�Governed �Known as by Section 3 of SOA 2003 Sexual Touching �Section 3(1) states: �“A person (A) commits an offence if- �(a) he intentionally touches another person (B), �(b) the touching is sexual, �(c) B does not consent to the touching, and �(d) A does not reasonably believe that B consents. Sexual Offences – Sexual Assault

�Actus Reus: Elements include: �Touching of another person, V. �Touching is ‘sexual’. �V does not consent to the touching. Sexual Offences – Sexual Assault

�Sec. 79(8): states that “touching” includes touching: �(a) �(b) �(c) with any part of the body; with anything else; through anything. Sexual Offences – Sexual Assault

� CASES: � Bamonadio [2005]: Touched V’s breast � Burns [2006]: Touched V’s breast � Elvidge [2005]: Touched V’s private parts � Turner [2005]: Held: Kissing V’s private parts was “touching”. � W [2005] Held: Kissing V’s face amounted to “touching”. � Nika [2005] Held: Pressing D’s body against V’s buttocks amounted to “touching”. � Osmani [2006] Held: Rubbing D’s penis against V’s body was “touching”. � Deal [2006] Held: Sniffing V’s hair while stroking her arm was “touching”. Sexual Offences – Sexual Assault

�Mens �Intent Rea: Elements include: to touch another �Lack of reasonable belief in V’s consent Sexual Offences – Sexual Assault