Zoom-CRIMINAL Law-UoL

Review Chapter 8

Rape

8.1 Sexual Offences Act 2003, s.1 – rape

(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.
(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.
(3) Sections 75 and 76 apply to an offence under this section.
(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment
for life.

8.2 Conduct elements

The actus reus of rape involves the non-consensual penetration of the mouth, anus or
vagina of a man or a woman by a man’s penis. Penetration by the penis is key to the
actus reus of rape. Penetration of the vagina, anus or mouth with the tongue or finger
or with objects such as broom handles, bottles or dildos is not rape. Where the orifice
penetrated in this way is a vagina or anus, the penetration constitutes the separate
offence of (sexual) assault by penetration (SOA 2003, s.2). In the case of the mouth, it is
the offence of sexual assault.

-continuous act Kaitamaki [1985] AC 147; husband/wife after 1992 requires explicit consent

8.3 Absence of consent

s74-- agrees by choice and consent with the freedom and capacity to consent
-without these, there’s no consent

8.4 The presumptions

-evidential: rebuttable, arguable base on evidence and inference of evidence
 -conclusive: non-rebuttable, inarguable base on strict standards
-eg: common sense and lawful sense states that a child of 5 cannot consent to sexual intercourse
-s76 2 a,b
- talks about deception/fraud/dishonesty intentionally-- that caused V to consent to the nature or purpose
of the act within that deception
-deception by impersonation of someone V is familiar with (doesn’t apply to one V doesn’t know
personally)
8.4.1 Conclusive presumptions
By s.76 it is conclusively presumed both that V did not consent and D did not reasonably believe V to
consent in the following circumstances:
The job of the prosecution, therefore, is to try to establish beyond reasonable doubt either of these two
circumstances. If it succeeds the case is won without having to establish anything else.
(2)...(a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant
act;
(b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a
person known personally to the complainant.

Activity 8.1
a. In Newland (2015) (unreported) a woman, pretending to be a man, had penetrative sex with
another woman who believed her lover to be a man. Is this a case where the conclusive
presumption will apply?

i) a woman- female gender with a biologically borned sexual organ of the vagina (lawful)

ii) pretending- being something that is or someone who is not real; faking, beguiling (lawful)

iii) to be a man- being the opposite gender; with an unnatural sexual organ; a fake penis (lawful)

iv) had penetrative sex with another woman - sexual intercourse where sexual organ penis enters
sexual organ vagina and/or non-sexual organs of anus and/or mouth

v) who believed- a belief without doubts; a trust

vi) her lover to be a man- indirect, implied deception (unlawful) of gender identity

Is this a case where the conclusive presumption will apply?

s76 2a

i) Consent: Did V give it?

-Yes

ii) Did V give consent to the nature or purpose of the act?

-Yes. V gave permission to the nature and purpose of the act of sex= of penetrative sex

iii) Had V known would V have had sex?

-Yes V may
-No V may not
-we don’t know
-there are doubts but not our position to guess; therefore there are reasonable doubts

**Did D intended/purposely/deliberately -- yes deliberately attached a fake unnatural penis onto self

i) try to deceive V- yes, no, doubts

ii) or did deceive V- yes about the sex identity but no not deceived for the nature or purose of the sex for
sex and had sex

s74 Consent

i) Did V agree- yes

ii) by choice- yes
iii) and with the freedom and capacity to make that choice? - yes

s1
(1) A person (A) commits an offence if—
 (a) he intentionally penetrates the vagina, anus or mouth of another person (b) with his penis, --
YES penetrated
(b) B does not consent to the penetration, and --- YES B CONSENTED
(c) A does not reasonably believe that B consents. -- A does believe B consented;
“reasonably?” -- NO
(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. -- NO ; A didn’t expose true gender in
extra steps to secure consent; assumed implied consent
(3) Sections 75 and 76 apply to an offence under this section.
(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment
for life.

Conclude:

-Yes A consented- s74 (lawful)

-Yes A consented to the nature and purpose of the sex with B- s76 (lawful)
-Yes D intentionally deceived V about the true gender for sex (unlawful) - s76 2a (conclusive presumption
based on evidential presumption)

-NO D didn’t intentionally deceived V as the the nature or purpose of the act-- which was sex (lawful)== B
wanted sex, B got it

-based on evidences-- s75 evidential presumptions (rebuttable)-- V truly and honestly did not
know D was a female; V DID NOT consent to the sex with a female (criminal)- therefore this
cancels ALL consents given before

‘The jury was told the “real issue” of the case boiled down to consent: did the complainant really know she
was having sex with her friend, or did she honestly think her sexual partner was a man she had met on
the internet?’
https://www.theguardian.com/uk-news/2017/jun/29/gayle-newland-found-guilty-at-retrial-of-tricking-
female-friend-into-sex

After you have considered your answer, read Wilson 12.7.A.2 to find out if you are right.
-Yup correct answer before searching online; i like this new reformed law giving more rights to victims
whereas before they stopped at, “well you gave consent to the FIRST nature and purpose of the act,” so
whatever you get after is your fault (Linekar)

-now what you consent before is one thing but after proven you didn’t consent to whatever happened
post-sex or the circumstances of the consent, then consent of the act from before cancels the latter
-so with Newland, V would have lost the case if it was tried in the 90s
b. Read the summary and explanation of Devonald in Wilson 12.7.A.2. Is it consistent with
Linekar? If Linekar were decided today would it be decided any differently?

Devonald- father (pretended to be a girl) deceived the bf of his daughter to teach the boy a lesson not to
mess with his daughter
-D faked a female lover online to trick the boy believing the “girl” is interested
-D (as the anonymous “Casey,” fake girl) asked V to masturbate on video
-D planned to release video to embarrass and harm V’s reputation for messing with his daughter

-D charged with s76 2a SOA 2003

-basis:

-V consented to the nature of the act -- which was sexual pleasure

-yet V did not consent to the purpose of the act-- which was sexual activity with a girl named “Casey”
(faked by D)

-b/c V didn’t not consent to the purpose, then V’s first consent to the nature of it doesn’t count
-since D gave V the (underlying intended deceived) “purpose” which V didn’t consent to, therefore this
vitiates consent
-so D is convicted; appeal application denied

Compare to Linekar
-D had sex with prostitute and didn’t pay

-V consented to the nature of the act-- sexual activity

-V did not consent to the purpose of the act-- sex without pay
-V had sex with incentive to get paid

-but old law

-D not guilty b/c basis that V consented to the nature of the act; court didn’t account for the deceived
purpose of the act on V
-ss4 SOA 1956
 -yet new law
-Linekar would get the rights/fairness similar to V in Devonald b/c the purpose is accounted and vitiates
consent
-D would get ss4, 76 SOA 2003
-(my suggestion: sex business, not paying for service; Fraud- D may also get punishment under Fraud
Act 2006 s1, s11)

Illustration 8.1
D tells V he is Brad Pitts, a famous film star in order to secure her consent to sexual activity. He is
not Brad Pitts although he looks a lot like him. V engages in sexual activity with him believing him
to be Brad Pitts.
s76 2b- does not apply b/c Pitt is a celebrity and there are many who look like him and there are
many who pretend to be him; if we punish then we will need to punish a ton of them; we have no time
or jail spac
-deception must be someone familiar to V; known personally
-eg: an identical twin (eveeeel twin)

8.4.2 The evidential presumptions

By s.75, where one of six different circumstances occur, it is a rebuttable evidential presumption that the
complainant did not consent to the relevant act, and that the defendant did not believe that the
complainant consented to the relevant act.
The key difference between these presumptions and the presumptions in s.76 is that the evidential
presumptions can be rebutted by the raising of relevant evidence. This will generally not be easy but it is
possible.

(3) The circumstances are that—

(a) 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;
(b) 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 another person;
(c) the complainant was, and the defendant was not, unlawfully detained at the time of the relevant
act;
(d) the complainant was asleep or otherwise unconscious at the time of the relevant act;
(e) because of the complainant’s physical disability, the complainant would not have been able at
the time of the relevant act to communicate to the defendant whether the complainant
consented;
(f) 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 time of the relevant act.

8.4.3 Section 74 – the statutory definition of consent

-a person agrees by choice with the freedom and capacity to consent to that choice

Intoxication and consent

-if absolute 100% unconscious, then no consent
-if partially unconscious; half wake half hazy, then yes consent to some degree (doesn’t matter, but
consent does exist, though limited but still counts)
8.5 Procedure: relationship between s.1, s.75 and s.74

Illustration 8.2
D spikes V’s drink with alcohol for the purpose of disinhibiting V. V then has intercourse with D,
as D planned. V then discovers the deception and calls the police. D is prosecuted for rape.

Prosecution need to prove:

a. that V did not consent, and

b. that D did not reasonably believe that V did consent.

Activity 8.2
Read Wilson, Sections 12.7.A.1 ‘Relevance of fraud or force – presumptions’, 12.7.A.2 ‘Fraud –
conclusive presumptions’ and 12.7.A.3 ‘Evidential presumptions’, and answer the following
questions.
With particular reference to the presumptions in the SOA 2003, is there consent in the following
situations? And how, if at all, could the presumption be rebutted?
a. Donald and Vera have sexual intercourse. Donald had promised Vera money for doing so, but
left without paying.
i) Donald and Vera have sexual intercourse- both consented to the nature of the act of sexual activity
(lawful)
ii) Donald had promised Vera money for doing so- incentive for the act (lawful -example if prostitution
is legal)
iii) but left without paying- deception, fraud (criminal) - Fraud Act 2006 s1, s11. SOA 2003 s76 2a; s74

-if it’s a legal prostitution business then see Linekar example above
-if it’s an illegal business, then it could have basis of - promised gift, where V honestly believed consent to
the purpose of the act of a favour but b/c D’s fraud, V’s consent is impaired-- so no consent, D liable
-requires V to be of age of consent- if underage then no consent; SOA 2003 other sexual offences with
children
-if at all, could the presumption be rebutted? s74 SOA 2003
base on evidences: example
-prove that V consent: explicit signing, text messages, verbal/written explicit evidences
-D has all reasonable sense that V consents: D tells V the truth and V says ok; D checked V’s id to ensure
and did his best to ensure consent; consenting to both the nature and purpose before, during and after
sex [CONSENT IS A CONTINUOS ACT (Sandra Paul, 2018)]; arrangment for payment if can’t pay
immediately...etc

*besides cementing consent, the next important step is = CATCHING THE SIGNAL “STOP”-- NO MEANS
NO. Ignore the call for “STOP” IS DETRIMENTAL

b. Donald tricks Wendy into having sexual intercourse with him by pretending to be George
Clouseau, a famous film actor.
-doesn’t apply to s76 2b SOA 2003. this requires the fake persona to be someone who V knows
personally
-vitiates consent; nature was for sex, purpose was for sex with a star
-V knew he was a star (though faked) but V permitted physical contact and sex with someone famous (to
her knowledge at least)
how, if at all, could the presumption be rebutted?
-cannot
-V consented; by common sense, by legal sense
Prosecution need to prove:

a. that V did not consent, and --- yes V consented

b. that D did not reasonably believe that V did consent. -- yes all reasonable belief V consented

c. Frank is Beatrice’s facebook friend. They have been friends for several months. They have sent
each other photographs. Donald, Franks’s twin brother, finds out about their relationship and,
pretending to be Frank, arranges to meet Beatrice in a pub. Later that evening he invites her to his
apartment where, still pretending to be Frank, he proposes intercourse which she agrees to.
-yes applies to s76 2b SOA 2003
-V knows this person on a private level, they’ve exchanged previous lengthy conversations
-sex has not happened yet; he proposed is different than he and her had intercourse
-V was tricked therefore this vitiates consent
-V agreed to the nature of sexual proposal; V agreed to the purpose of sexual proposal with Frank (not
Donald)
how, if at all, could the presumption be rebutted?
-no if V did not know and honestly deceived
-yes, if V knew (and prosecution can prove that V knew) but like D, she pretended not to know for some
reason, maybe she likes Donald just as much as she did Frank, but after intercourse changed her mind
and blamed this fake person

Prosecution need to prove:

a. that V did not consent, and -- true, V didn’t consent to Donald

b. that D did not reasonably believe that V did consent. -- D didn’t expose his deception so V can have a
chance to agree and has the freedom and capacity to agree s74 SOA 2003. B/C D didn’t tell the truth, D
did not (and could not) reasonably believe that V did consent (by standard subjective view, and objective
view); D had the intention to deceive; so consent was from the deception not a true informed consent
-D didn’t take reasonable measures to ensure consent either
-all points indicate no consent

d. Donald, who is happily married to Xenia, comes home to find her asleep and starts having
sexual intercourse with her. She wakes up and tells him to stop.
i) Donald, who is happily married to Xenia- lawful
ii) comes home to find her asleep- sleep, rest- complete respiration stage (organism’s cells respire,
exchange oxygen, remove CO2, gain energy but not “dead” though not fully awake/alert either to make
informed choices) where body and mind has no conscious and physical and physiological control =
cannot consent to anything or to anyone
iii) and starts having sexual intercourse with her- sex when V cannot consent (criminal); V cannot and
did not agree and have the freedom or capacity to agree s74 SOA 2003; so no consent;
iv) She wakes up and- fully aware, psychologically and physiologically informed, capable to react and
make choices
v) tells him to stop- no consent; explicit alert; signal STOP

Prosecution need to prove:

a. that V did not consent, and -- no consent; while asleep and after waking up
b. that D did not reasonably believe that V did consent. --the explicit “STOP” is clear

how, if at all, could the presumption be rebutted?

-not applicable

e. In a bar, Donald buys Yvonne an alcoholic cocktail rather than the non-alcoholic drink she
asked for. Yvonne does not notice the difference and, not being used to alcohol, becomes drunk.
Donald drives Yvonne back to her flat where they have sexual intercourse.
i) In a bar, Donald buys Yvonne an alcoholic cocktail- D initiates alcoholic drink (lawful)
ii) rather than the non-alcoholic drink she asked for.- V did not consent to alcoholic initiation
(unlawful- because there is no justifiable reason to buy alcohol if drinker didn’t want or ask for it);
(criminal- because no consent to the unlawful act)
iii) Yvonne does not notice the difference and,- nononsensual continues since the initiation of alcohol,
just because V didn’t know the difference doesn’t vitiate her consent at this point (still criminal violation of
consent)
iV) not being used to alcohol, becomes drunk.- nonconsensual continues: no consent to alcohol from
the beginning, then no consent not knowing the difference, then now, no consent to being drunk either
(still criminal violation of consent)

(fully conscious- from i to iv goes with s74 SOA 2003)

vi) Donald drives Yvonne back to her flat-

-yes- V consent to getting a lift home so she doesn’t need to walk, drive or take a taxi; V consent to the
nature of the drive, for the purpose of getting home
-about the drive, consent here is debatable b/c requires the level of drunkenness = need evidential
presumption as proof s75 SOA 2003; s74 SOA 2003
-yes- V consent to the drive if under 100% drunk or explicitly said yes
-no- V did not consent if V was at 100% blackout drunk or explicitly said no
Prosecution need to prove:

a. that V did not consent, and --- about the drunkenness is debatable s75
b. that D did not reasonably believe that V did consent-- about the drunkenness is debatable s75

vii) where they have sexual intercourse

-about the sex, consent here is debatable b/c requires the level of drunkenness = need evidential
presumption as proof s75 SOA 2003; s74 SOA 2003
-yes- V consent to the sex if under 100% drunk or explicitly said yes
-no- V did not consent if V was at 100% blackout drunk or explicitly said no
Prosecution need to prove:

a. that V did not consent, and --- about the sex is debatable s75
 b. that D did not reasonably believe that V did consent-- about the sex is debatable s75

-- if she didn’t consent to SEX at the end: can assume b/c she didn’t consent to the alcohol at the
beginning which continues no consent to the end with the sex; it can be a BUT FOR cause. V didn’t
permit alcohol BUT FOR the deception of D, V took alcohol unknowing and has not consented to getting
drunk unknowing == which leads to the drive unknowing, then results in the sex unknowing= involuntary
intoxication -- chain of cause (chapt 4)

-absolutely must consult s75 SOA 2003 to find rebuttable evidences and evidential presumption

f. Donald meets Violet in a singles bar. He invites her back to his apartment, where, after having a
few drinks, he takes out a pair of handcuffs. He says to Violet, ‘We are going to have sex now and
I am going to put these on you’. He does so and they have sex.
-same as above case scenario
-V consented to invitation back to the apartment b/c V & D didn’t drink/or got hammered blackout at the
bar; there was a degree of conscious awareness at the bar, during the invitation and then the drive back
to the apartment
-only started “real drinking” at the apartment
-consent seem to continue up to this point

-same as above scenario

-after drinking: depends on level drunkenness of V ---need s75 SOA 2003, s74 SOA 2003 to determine:
-whether V consented to the cuffs
-whether V consented to the sex
-whether V consented to both

Prosecution need to prove:

a. that V did not consent, and --- about the cuffs, about the sex is debatable s75
b. that D did not reasonably believe that V did consent-- about the cuffs, about the sex is debatable s75

8.6 Mens rea

At common law the prosecution were required to prove that the defendant lacked an honest belief that the
victim was consenting. The defendant could escape liability even if his honest belief was not based upon
reasonable grounds:

Am I ready to move on?

You are if – without referring to the module guide or Wilson – you can answer the following questions.

Define the offence of rape.

2. SOA 2003
s1-
State whether penetration of a woman’s vagina with a man’s tongue is rape.
3. no
State whether a man can be guilty of raping another man.
4. yes
State whether a woman can be guilty of rape.
5. no
State whether it is rape if a man has intercourse with a transgender woman who has a surgically-
created vagina.
6. yes
Define consent.
7.s74
-agree by choice, freedom and capacity to consent
Explain the meaning and significance of the conclusive presumptions.
8.-undebatable - unarguable
s76 (a) consent to the nature or purpose of the act == if not then it is deception
-(b) it is deception if D is personally known to V and deceives V ie: like twin brother & deceived V into
sexual intercourse=
Explain the meaning and significance of the evidential presumptions.
9.debatable facts, evidences, arguable s75
State the circumstances which create the conclusive presumptions.
10.
State the circumstances which create the evidential presumptions.
11.
Explain and illustrate the court procedure in cases where a conclusive presumption is relied
upon.
12. -there is less “work” to prosecute== b/c it is conclusive and justified
Explain and illustrate the court procedure in cases where an evidential presumption is relied
upon.
13.-prove beyond a reasonable doubt; and if D has good defences then he can have a good chance to
win
Explain the fault element for rape and the relevance, if any, of the presumptions to that fault
element.
***consent*** s74