SEXUAL OFFENCES

RAPE

s1(1) Sexual Offences Act 2003:

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.

Actus Reus

Penile penetration

s79(3) References to a part of the body include references to a part surgically

constructed (in particular, through gender reassignment surgery).

s79(2) Penetration is a continuing act from entry to withdrawal.

Kaitamaki [1985] AC 147

Of vagina, anus or mouth

Compare with ‘sexual intercourse’ under s1(1) Sexual Offences

(Amendment) Act 1976 as amended by s142 Criminal Justice and
Public Order Act 1994.

s79(3) includes surgically reconstructed body parts

QUESTION
Has the Sexual Offences Act 2003 extended the definition of rape too far?

Cover oral sex and homosexual sex

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Without consent

Go through s76&75 – pick most relevant. Then spend time on problem area
of s74.

s76 Irrebuttable Presumptions

s76(2)(a) [A person does not consent if] the defendant intentionally deceived
the complainant as to the nature or purpose of the relevant act.

QUESTION
What is meant by the terms ‘nature or purpose’? How far does the ‘purpose’ of
sex depend on context?

Example: having sex w someone, then take condom off. She didn’t know. Have u
deceived the nature/purpose of the sex? Or is more she didn’t choose to have
sex. S.74 issue

Flattery (1876-77) LR 2 QBD 410: C deceived into believing intercourse

was a surgical operation – wouldn’t happen today.

Clarence (1889) LR 22

Papadimitropoulos (1957) 98 CLR 249: woman deceived into believing

she was married to the defendant

Linekar [1995] 2 WLR 237: woman deceived into believing that she would
be paid for the intercourse – agreeing sex to prostitute. Prostitute said if u
pay me agreed rate will have sex with u. but after sex, he didn’t pay her. Q
– was there an irrebuttable assumption it was w/out consent? – court
decided she had consented to physical act of sex. Not deceived to nature
or purpose of sexual intercourse. But the payment. t/f s76 presumption
doesn’t apply.

Tabassum [2000] 2 Cr App R 328

Dica [2004] 3 All ER 593 and R v B [2006] EWCA Crim 2945: Sexual
intercourse with defendant who failed to reveal his HIV positive status
Argument irrebuttable presumption she didn’t consent to sex w someone
who had HIV. Courts said: u have consented to physical act of sex. Not
consented to consequences. Not s.76 but assault against a person.

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 Devonald [2008] EWCA Crim 527: boy persuaded, by deception, to
masturbate in front of a webcam – case on consent and s4 –
overprotective dad. Dumped by guy daughter. To humiliate guy he posed
as another girl and chatted guy up and persuaded him online to wank on
webcam. Was he deceived to nature/purpose of the act?
Bingham [2013] EWCA Crim 823: woman persuaded, by deception and
threats, to commit sexual acts over the internet – case on consent and s4
Guy had fake identities online/ woman had sex w D. courts confirmed s76
should only be used in extreme circumstances. Use s74

s76(2)(b) [A person does not consent if] the defendant intentionally induced the
complainant to consent to the relevant act by impersonating a person known
personally to the complainant. V NARROW EXCEPTION

Compare s1(2) Sexual Offences Act 1956 and Elbekkay [1995] Crim
LR 163 – young woman + bf + bf’s friend came home to same flat. She
went to bed and bf and his friend watched tv downstairs drinking. Bf fell
asleep and his friend went upstairs and snook into woman’s bed and
whilst she was half asleep she initiated sex she thought was her boyfriend
so consented. Q – was she induced to believe it was someone else?
Courts said yes.

s75(1) Rebuttable Presumptions

s75(2)(a) Where any person was, at the time of the relevant act or
immediately before it began, using violence against the complainant or
causing the complainant to fear that immediate violence would be used
against him.

s75(2)(b) Where any person was, at the time of the relevant act or
immediately before it began, causing the complainant to fear that violence
was being used or that immediate violence would be used against any
person.

s75(2)(c) Where the complainant was, and the defendant was not,
unlawfully detained at the relevant time.
McFall [1994] Crim LR 226
Kidnapped by ex-bf almost. Dragged to hotel. Had weapon but didn’t use
it. Locked her into room. Was there fear of violence? More of issue of

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 whether she was being detained. Ended up faking she was enjoying sex
to escape.

s75(2)(d) Where the complainant was asleep or otherwise unconscious at

the relevant time. – overlaps s74
Larter and Castleton [1995] Crim LR 75

s75(2)(e) Where because of the complainant’s physical disability, the

complainant would not have been able to communicate to the defendant
whether the complainant consented at the relevant time

s75(2)(f) Where any person had administered to or caused to be taken

by the complainant, without the complainant’s consent, a substance
which, having regard to when it was administered or taken, was capable
of causing or enabling the complainant to be stupefied or overpowered at
the relevant time

(What is the distinction between this and s61?)

s74 …a person consents if he agrees by choice, and has the freedom and
capacity to make that choice – KEY PROBLEM AREA
recent case of Lawrence – guy said he had a vasectomy – woman got
pregnant. Has she agreed by choice or s76?. Issue was whether she consented
to physical act of sex. Said not s76 situation. She agreed to have the ejaculate
inside her but not the consequences. Did she agree by choice under s74? –
what happens if u flip this tho? Says ur on the pill and man has sex.
Wouldn’t be rape cos woman cant rape?. Couldn’t convict him. She
consented.

Professor herring wrote articles on this. – must have full consent.

Assange v The Swedish Prosecution Authority [2011] EWHC 28499:

deception about condom use. – wasn’t wearing one. Did she agree by
choice? Court said she hadn’t agreed by choice bc difference of sex with
condom/without.

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 McNally [2013] EWCA Crim 1051: complainant believed the defendant
was a cisgender boy (case on s2 and consent). – D was biologically a
woman.

Newland [2017] unreported: complainant believed that the defendant, a

girl, was a boy. https://www.theguardian.com/uk-
news/2017/jun/29/gayle-newland-found-guilty-at-retrial-of-tricking-
female-friend-into-sex - not agreeing by choice bc totally misinformed.
No informed choice.

Olugboja [1982] QB 320: ‘there is a difference between consent and

submission’ – 2 men involved no threat of violence. But had sex w another
woman her friend n then turned to her right now im gonna have sex with u
and she didn’t resist. Couldn’t say was fearful of violence but thought in
the circumstances saw rape of her friend reluctantly submitted. Courts
said she wasn’t agreeing by choice and overlapped with her not having
the freedom and the capacity to do so. – some situations where there is
no full consent but just go along with it and agree, was there genuine
consent or not?

Jheeta [2007] EWCA Crim 1699: woman pressured into having

intercourse because of lies told by D. – guy wanted girl who wasn’t keen
on him so he sent messages to her pretending to be someone else
harassing her. She runs into d’s arms. He gets intimate w her when shes
vulnerable. She wants to take threats to police and D said he will take it to
the police. Doesn’t go police. He send pretend messages from police to
girl telling her to stay with the guy and he will protect her. Told her itd help
to have sex with him. She believed for a bit eventually took to police.
Courts said it isn’t deceiving to nature/purpose of act. Still consenting just
doing it on the back of a deceit. Conflict devonald.

Bree [2007] EWCA Crim 256: no rape where complainant remains

capable, despite voluntary intoxication, and agrees to have intercourse

Reluctant acquiescence. – W 2015

Man fathered child 17, couldn’t care, child adopted. Child grew up wanted
to know father. Had a relo with father. Involved acts of bondage/underlying
psycho issues. Most of times she was consenting. Even tho knew
biologically relationship. Later decided she didn’t want to. Issue: did she
have freedom/capacity to consent? Courts said she had freedom to
choose, but question on whether it was properly informed freedom.
Sometimes reluctantly went along with it. – look at some commentary.

Tambedau 2014 – memory loss about exact facts. Drifting in and out of
consciousness. Didn’t know if she consented/capable of. Judge said. Conflicting
evidence bree. She was rlly drunk so no freedom of capacity. Put it to jury.

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Problem area: what happens if u drunk :-0 if u drunk to point of semi.
A lot of ppl say a drunken consent is still a consent >☹

The Fault Element – mens rea

Intentional penetration s1(1)(a)

Without reasonable belief in consent

s1(2) Whether a belief is reasonable is to be determined having regard to

all the circumstances, including any steps A has taken to ascertain
whether B consents.

R v B [2013] 1 Cr App R 36 – guy had elemeFnts of delusional beliefs

may have had scheizo. But not medically classified as insane.
Delusionally believed she was consenting. She wasn’t, obvious to
everyone else.

s76(1) and s75(1)

presumption. Can’t have a reasonable believe consent. I.e. unconscious,
detaining etc.

ched evans case – booked hotel room him and friend had sex with
complainant. Friend thought she was willing participant with friend
as well. Used girls sexual behaviour history. Controversial. Victim
shouldn’t have sexual history aired in public.

QUESTION
Should rape be a crime of negligence?

DPP v Morgan [1976] AC 182

Guy persuaded his friends his wife wanted to be raped and she would
resist. So his friends then raped her. Q – did they even tho she wasn’t
consenting how did u judge it? Courts said it was based on their honest
believe. If they honestly held that belief they held that defense. On the
facts, no reasonable jury would believe that. – research cos confused.

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ASSAULT BY PENETRATION

s2(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

i.e. fingers, other objects.

McNally 2013 above

Newland 2017 above

SEXUAL ASSAULT

s3(1) 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.

Touching

s79(8) Touching includes touching –

(a) With any part of the body,
(b) With anything else,
(c) Through anything
And in particular includes touching amounting to penetration

Sexual touching

s78 touching is sexual if a reasonable person would consider that –

(a) Whatever its circumstances or any person’s purpose in relation
to it, it is because of its nature sexual, or
(b) Because of its nature it may be sexual and because of its
circumstances or the purpose of any person in relation to it
(or both) it is sexual.

QUESTION
What is meant by the word ‘sexual’?

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R v H [2005] EWCA Crim 732 – touching through sweatpants.

Compare with indecent assault under ss14, 15 Sexual Offences Act 1956. See
for eg Court [1989] AC 28, - butt fetish, spanked girl through skirt
George [1956] Crim LR 52 foot fetish, Thomas [1985] Crim LR 445, school
caretaker rubbed girls butts Pratt [1984] Crim LR 41

CAUSING SEXUAL ACTIVITY

s4(1)A person (A) commits an offence if –

(a) he intentionally causes another person (B) to engage in an activity
(b) the activity is sexual,
(c) B does not consent to engaging in the activity, and
(d) A does not reasonably believe that B consents.

Devonald 2008 above

Bingham 2013 above

PREPARATORY OFFENCES

s61 Administering a substance with intent

s62 Committing an offence with intent to commit a sexual offence
s63 Trespass with intent to commit a sexual offence