Sexual Offences

SEXUAL OFFENCES ACT 2003

The sexual offence Act 2003 was the attempt to reform the existence law and common law provisions as it relates to sexual offences. The act provide life imprisonment as the maximum penalty for the offence.

RAPE

Rape is the penetration of mouth, anal and varginal and none of which is more serious R v Ismail (2005) R v R (1992) House of Lords ruled that rape within marriage could be a criminal offence. Penetration is a continuing act and the consent must be valid throughout the process s.79(2) andn Kaitamaki (1985)

MENS REA

Intentional penetration and lack of reasonable belief in consent. Morgan (1977) belief is to be both honestly beld and reasonable.

ASSAULT BY PENETRATION

A penetration of anus, vagina, mouth with penis, mouth, tongue, hand or any other thing.

Mens Rea: Intentional penetration and lack of reasonable belief in consent. Morgan (1977) belief is to be both honestly beld and reasonable.


SEXUAL ASSAULT - Section 3 of Sexual Offences Act 2003

This new offence replaces the old indecent assault offence.

Actus reus: Touching with any part of the body; touching with anything else; touching through anything and the touching must be sexual

Mens rea: Text of sexual activitity: If a reasonable person, for whatever purpose and circumstance it is because if its nature sexual.

Because of its nature, it may be sexual and because of the circumstances or the purpose of any person in relation to be sexual

CONSENT

In approaching a problem question use s.74, s.75 and s.76 reverse order. Obtaining consent by deceit renders the offence conclusive valid. S.75 talk about the evidential presumptions.


EXAM ADVISE

Mens rea: Intention to have sex
Sex without consent is rape

JAKE and Ana

Rape contratry to section 1 of SOA 2003

RAPE

Rape is the penetration of mouth, anal and varginal and none of which is more serious R v Ismail (2005) R v R (1992) House of Lords ruled that rape within marriage could be a criminal offence. Penetration is a continuing act and the consent must be valid throughout the process s.79(2) andn Kaitamaki (1985)

MENS REA

Intentional penetration and lack of reasonable belief in consent. Morgan (1977) belief is to be both honestly beld and reasonable.

DEFENCE:

The belief that No means yes. Ana is sleepy but not asleep. Chose to consent freely is Ana capable of consenting freely in her sleepy state. If the jury is convinced that.

If consent is not present, then we consider Jake's state of ming. He intentionally had sexual intercourse. Does he have reasonable belief. He may honestly belief because of what he has been thought by the cult that no means yes. Platonic may mean consent using the same analogy. However, under s.1 Jakes belief must be reasonable to excape liability. The jury in deciding this have to consider all the circumstance.

Did the victim agree in her sleepy state. S.1(2) Whether D take any reasonable steps into account in assessing the reasonableness of D's belief in consent, the jury may also consider circumstances, age, mental capacity, previous relation. Cite the test:

JAKE AND FLORA

Flora has been decewived and s.76 may apply and the case may be similar to Tabassum. Her belief in Jake's qualification is not relevant (Richardson. Jake intentionally deceived her, but she does not have to be induced to consent by the deceit. The woed induced is used in s.76 not not in s.76(2)(a). There may therefore be evidential presumption against consent. It is then for Jake to argue that despite the deceit, Flora freely consent. If consent is not proved, thenm Jake

JAKE AND DEBIE

There was no sexual intercourse. This cannot be sexual assault. It must therefore be s.4 offence, causing another to engage in Sexual Activity. Debbie is not deceived many not apply. Has debbie freely consented with full capacity. She appears relunctant but feel obliged to consent because of what her father told her. Is debbie capable of consenting becayse of her age. If consent is not .

Reasonable belief then mens rea may not be found. This create a potential objecive test which is a fundamental change as mens rea for rape under the common law is D's belief would have been honestly held (subjective) but not reasonable (objective. Assault by penetration is a new offence and sexual assault replaced indecent assault. Causing another to engage in sexual activity is a new offence. Clarify consent.

The origins of 2003 Act lies in the recommendation of a review carried out by the home office Setting the Boundaries (2000) White House received Royal assent on November 20, 2003. The government considered the existing law on sexual offences as archaic, incoherent and discriminatory and failure to reflect current realities.

The offence of rape was extended to include non-consentual anal intercourse with woman or man. S.1 further extend the definition of vagina to include vulva and references to part of the body throughout the Act including those surgically altered and applied to transensual. It includes oral penetration by amn of woman. Forced oral sex is penetration.

Intentional penetration
Absence of consent
Absence of reasonable belief in consent

The concept or recklessness has disappeared entirely from the offence of rape. previous law require either d D knew of was reckless to the fact. Sexual assualt is a triable either way offence and sentencing is 10 years. The court test and its application has been critised ad vague and unclear. It has been argued that it will be difficult to apply the test in s.78(c) considering the issues that will be brought into play. While s.78 might require some fine-tuning, it was non-inclusion in Canada and Australia that has led to to costly proliferation of ases.

Olugboga approach to consent was to leave the jury to consider difference between consent and mere submission.

In view of the concern about compatibility since the reverse onus provision of innocence in Article 6 of Human Right Convention interpreted by the House of Lords was abandoned for evidential burden. Those who were raped will have to take their chances without the benefit of evidential presumption.

RECENT DEVELOPMENTS

R v Heard (2007) ECWA Crime 125 - Voluntary Intoxication and Section 3 of SOA 2003 (Sexual Assault). The court held the touching in s.3 did not require specific of purposive intent but basic intent and therefore in applying Majewski voluntary intoxication could not be relied upon to negate that intention.

R v Bee (2007) - D and V had sex while V was intoxicated. D had the capacity to consent, but her ability to resist had been hampered by alcohol. Rape: Consent. Voluntary intoxication by the complaint. The Court of Appeal held that:

If through drink of any other reason the complainant had temporarilly lost her ability to consent and sexual intercourse took place, subject to the defendant state of mind, she was not consenting. However, where the defendant had voluntary consumed substantial amount of alcohol but had nevertheless remain capable of choosing whether to have intercourse or not (and in drink had agreed to do so) this would not constitute rape. The court was of the view that the Jury had not been given sufficient direction in the issue of voluntary intoxication and consent to allow their verdict to be regarded as safe.