SEXUAL OFFENCES Question 1 Barry (35) is the manager of a local bar. At the end of one-night Barry invites a new member of bar staff – Jenny (18) - back to his flat so they can get to know each other a bit better. Jenny consumes a number of vodka and tonics. Concerned that Jenny is quite tense, Barry secretly slips an ‘ecstasy’ tablet into her final drink in order, as he sees it, to make her more relaxed. After consuming the last drink, Jenny feels very disorientated. When she finally regains her senses sometime later, she finds that she in a bed and that Barry is engaging in anal intercourse with her. She does not struggle as she feels too weak. Barry later claims that Jenny went into the bedroom voluntarily with him and therefore he thought she was consenting. Discuss the criminal liability of Barry. FACTS: - ● ● Barry invites Jenny back to his flat so they can get to know each other better Jenny consumes a number of vodka and tonics Concerned that Jenny is tense, Barry secretly slips an ‘ecstasy’ tablet into her final drink in order to make her more relaxed (as he sees it) After consuming the last drink, Jenny feels very disorientated When she regains with her senses she finds herself in a bed and Barry is engaging in anal intercourse with her She does not struggle as she feels too weak Barry claims that Jenny went into the bedroom voluntarily with him and therefore he thought she was consenting Identify offence ● S.1 - Rape - Penial penetration - Anal intercourse AR ● Non-consensual penile penetration ● When looking at consent, always looking at the complainant’s mindset ● S.76 - conclusive presumption → always worth covering this first! To either rule out ot keep - If the circumstances under s.76 apply, then D cannot rebut this Do the circumstances in s76 exist? No: S76 does not apply here. Do the circumstances in s75(2) exist? f) Any person had administered to or caused to be taken by C, without C’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling C to be stupefied or overpowered Rape and s75(2)(f) ➔ She was spiked with ecstasy Barry knew those circumstances existed. He is the one who slipped the ecstasy into her drink. Presumed that C is taken to not have consented and D is to be taken not to have reasonable belief in C’s consent. UNLESS Barry adduces sufficient evidence. Apply Ciccarelli ● ● ‘Some evidence beyond the fanciful or speculative’ to rebut this presumption Barry: She consented because she walked into the room after me - Difficult for him to rebut this presumption if this is what he thought Apply Zhang ● ● Whether presumption could be rebutted falls on the trail judge When doing a problem question, always say that it falls on the trial judge so we wouldn’t know for certain S.74 S74 A person consents if he agrees by choice and has the freedom and capacity to make that choice. ● Complainant: Agree by choice and has the freedom and capacity to do so ● She did not agree by choice or freedom because she did not have the capacity to do so: spiked with ecstasy ● Highly likely that the jury will find that she did not give consent ● Bree [2007] → recognize ● Drunken consent = consent BUT spiked intoxication is not ● Bree decided that the judge will direct the jury to understand ● MR: Intention and Barry does not have reasonable belief in the complainants consent. ● Penetration has to be intentional 1(1) He intentionally penetrates the vagina, anus or mouth of another person with his penis ● Reasonably believe in consent 1(3) A does not reasonably believe that B consents ● ● Trial judge gives this direction to the jury Taran - Talks about the reasonably belief in consent - Applies here Consider Taran (direction given to the jury if complainant did not consent and the D thought she was consenting) - Barry might have thought she was consenting because she walked into the room after him ● Regard to all the circumstances (2) whether a belief is reasonable is to be determined having regard to all the circumstances including any steps A has to take to ascertain whether B consents ● ● ● Treat the D as if they were sober - R v Grewal Highly likely that he will be held liable for rape ● Discuss that low conviction for raope ● Legal definitions don’t help that much in cases that are based on creditability Defences? Question 2 If a person (D) actively deceives another (C) to obtain consent to sex, and had C known the truth they would not have consented, there is no consent in law. Critically discuss the accuracy of the above statement. You should: ● Identify key terms “actively” ‘deceives” “consent” when answering this question ● Contextualise the question by acknowledging the inconsistencies in the case law and by briefly explaining the operation of, and the relationship between, s7 and s74 SOA 2003 ● Layout a clear framework for how they propose to address this question and; ● Offer a clear indication of their overall argument relating to the (in)accuracy of the statement/ the confusing, inconsistent approach from the courts Main body The historial context ● You could discuss deception case law prior to the 2003 Act and acknowledge its influence on the construction of s76 The relationship between s76 and s74 ● You could explain the restrictive nature of s76 given that the presumptions are conclusive and acknowledge that judges are reluctant to apply the presumption and instead turn to s74 ● Judges reluctant to apply s76 because it is conclusive Deception case law post 2003 in relation to applying s76/s74 ● You could discuss; ● Jheeta [2007]; Devonald [2008]; Bingham ● Note that “if there is any conflict between Devonald and Jheeta, we would follow Jheeta (para 19-20) ● You could discuss whether you agree with the restrictive approach applied to s76 and relate this back to the inaccuracy/accuracy of the statement as the case law suggests that c’s can rely on s74. However, there is uncertainty in relation to: ● 1. The type of characteristics that can vitiate consent under s74 R v Monica → environmental beliefs R v McNally - Controversial judgement 2. Deceptions involving pre-conditions and; ● Assange - Stealthing ● F v DPP - Complainant said she’ll have sex with him as long as he withdraws and doesn’t ejaculate - D didn’t follow through on his promise ● Lawrance → Assange and F v DPP is distinguished - The sexual act wasn’t closely connected to the performance ● Discuss the inconsistencies between the court’s rulings & whether or not you agree 3. The distinction between “active” deceptions and failure to disclose ● RvB - Actively deceiving the complainant vs actively failing to disclos - If the complainant gets the catches HIV, then they can be proseucted under OAPA 1861 ● McNally - Said decision in R v B is the correct one ● Lawrance - R v B was actually not correct ● Distinction between actively deceiving and actively failing to disclose shouldn’t be here anymore ● Discuss the inconsistencies and whether or not you agree ● ● ● ● Recommendations Conclusion ● Tie the question together and summarise key arguments ● Parliament could address the scope of s.74 ● Law commission should carry out an independent review and determine the types of deceit ● New offence is needed here to clarify the deception law
