Criminal - Sexual Offences

Front 1

s. 2(1) Criminal Law (Rape) Act 1981 - Rape

Back 1

s. 2(1) Criminal Law (Rape) Act 1981: an offence for a man to have sexual intercourse with a woman who does not consent, where he knows of or is reckless in respect of the lack of consent.

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Perpetrator

Back 2

Technically, a woman can commit the offence under the DCD.

However, only a man can perpetrate the offence.

The old rule whereby a boy under 14 could not commit rape was abolished by s. 6 of the CL(R)(A)A 1990.

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Victim

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Only a woman can be raped.

R v. Matthews (1996): “woman” includes a post-operative male-to-female transsexual.

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Married Couples

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Until 1990, there was a common law “marital exemption”, whereby a husband could not rape his wife.

This was abolished by s. 5(1) CL(R)(A)A 1990.

However, under s. 5(2), prosecution of a husband requires the consent of the DPP.

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“Sexual Intercourse”

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“Sexual intercourse” is construed as a reference to “carnal knowledge” in s. 63 OAPA 1861.

The slightest penetration constitutes sexual intercourse – emission of seed is not necessary.

Sexual intercourse commences with penetration and ends with final withdrawal; “at the time of the intercourse” there must be an absence of consent – this means that if consent is withdrawn during intercourse and the man fails to desist, the offence has occurred.

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Honest belief

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A defence to a rape charge is the honest belief that the woman was consenting.

This is assessed subjectively.

s. 2(2) provides the jury with an evidential tool in ascertain the Def’s honest belief: they can have regard to the presence or absence of reasonable grounds in considering whether he is to believed.

Penalty: maximum = life.

Front 7

R v. Matthews (1996)

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For the purposes of rape, “woman” includes a post-operative male-to-female transsexual.

Front 8

DPP v. Morgan (1976)

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HL decision which inspired s. 2(2) – three men were invited by a man to have sex with his wife; he had told them that she would resist, but that this was part of the act; the Lord held that honest belief was a defence, but found on the facts that the belief had not been honest.

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s. 2 Criminal Law (Rape) Act 1981 - Sexual Assault

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This can be summarised as assault with an indecent or sexual element.

s. 2 CLR(A)A 1990 renames indecent assault “sexual assault”.

Penalty: offence committed against a child under 17: max = 14 years; offence committed against an adult: max = 10 years.

R v. Court (1987): Def was charged with indecent assault of a 12-year-old girl, having slapped her on the buttocks a number of times. HL held that the test for indecent assault is:

i. An assault (usually battery, but not always physical contact);

ii. Indecency (this needs to be objectively indecent – indecent thoughts by the Def are insufficient; the test is whether “right-minded persons” might think the assault was indecent. Factors to consider = the relationship of Def and victim; reasons for his behaviour).

iii. Mens rea: includes the indecency – there must be intention for indecency.

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R v. Court (1987)

******

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Def was charged with indecent assault of a 12-year-old girl, having slapped her on the buttocks a number of times.

His explanation was *quote* buttock fetish *unquote*

HL held that the test for indecent assault is:

i. An assault (usually battery, but not always physical contact);

ii. Indecency (this needs to be objectively indecent – indecent thoughts by the Def are insufficient; the test is whether “right-minded persons” might think the assault was indecent. Factors to consider = the relationship of Def and victim; reasons for his behaviour).

iii. Mens rea: includes the indecency – there must be intention for indecency.

Court establishes that an assault is sexual in nature if it is capable of being considered by right-minded persons as sexual.

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s. 3 Criminal Law (Rape) Act 1981 - Aggravated Sexual Assault

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s. 3 CLR(A)A 1990: a sexual assault that

i. involves serious violence; or

ii. involves the threat of serious violence; or

iii. is such as to cause injury, humiliation or degradation of a grave nature to the victim.

Penalty: maximum = life.

It is presumed that the mens rea to be proven includes the element of the offence additional to sexual assault (i.e. serious violence, threat of serious violence etc.)

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s. 4 Criminal Law (Rape) Act 1981 - Rape Under Section 4

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s. 4 CLR(A)A 1990: a sexual assault that involves either

(i) the penetration (however slight) of the anus or mouth by the penis. or
(ii) the penetration (however slight) of the vagina by any object held or manipulated by another person.

The following do not constitute rape under s 4: (i) the digital penetration of a vagina. (ii) the digital penetration of an anus. and (iii) the penetration of an anus with an object. Section 4( 2) prescribes a maximum punishment of life imprisonment.

This is the most serious form of sexual assault.

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Consent

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Absence of consent is necessary for conviction for rape or any sexual assault.

NB: consent is not technically a defence, but absence of consent is an element of the actus reus.

Because consent is a free exercise of the will, it can be negatived by duress or deception.

s. 9 CL(R)(A)A 1990: failure to offer resistance does not of itself constitute consent.

s. 14 CL(A)A 1935: consent cannot be used as a defence to sexual assault where the victim is under 15.


Intoxication, lack of mental capacity, being asleep, youth or immaturity can negative consent.

Fraud as to identity vitiates consent, as does fraud as to the nature of the transaction (alleging that sex is a surgical procedure or will improve a singing voice); however, fraud as to veneral health will not vitiate consent, nor will misrepresentations as to rewards (monetary, career etc.), because here, the woman still knows the nature of the act to which she consents.

It is when the fraud destroys the consent that rape occurs.

Generally, consent is a decision for the jury based on the person and the circumstances.

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s. 9 Criminal Law (Rape) Act 1981 - Lack of resistance does not constitute consent

Back 14

s. 9 CL(R)(A)A 1990: failure to offer resistance does not of itself constitute consent.

Front 15

s. 14 Criminal Law (Amendment) Act 1935 - consent to sexual assault, minors

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s. 14 CL(A)A 1935: consent cannot be used as a defence to sexual assault where the victim is under 15.

Front 16

People (DPP) v. C (2001)

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"voluntary agreement or acquiescence to sexual intercourse by a person of the age of consent with the requisite mental capacity. Knowledge or understanding of facts material to the act being consented to is necessary for
the consent to be voluntary or constitute acquiescence"

Fraud (impersonation) also vitiates consent, be it intentional fraud or not, provided the Def does not honestly believe consent to be valid.

Front 17

R v Williams (1923)

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Consent will not be valid if it has been obtained by fraud as to the nature of the sexual act. In ) the accused led the victim to believe that sex was an operation that would enable the girl to sing better.

Front 18

R v Flattery (1877)

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It was represented to the victim that sex was a surgical procedure. In both of these cases, there was fraud as to the nature of the act which vitiated the apparent consent.

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R v Linekar (1995)

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The victim here was a prostitute who had agreed to have sex with the accused for £25.

After the act he ran awav without paying. It was held that although a fraud had been perpetrated. there had been no fraud as to the nature of the act that vitiated consent.

Front 20

R v Clarence (1889)

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Here the husband had sex with his wife knowing that he had gonorrhoea. She was not aware of this fact. When she contracted the disease he was
charged with assault.

However. it was held that there was certainly no fraud as to the nature of the sexual act but that the fraud as to the quality of it-a means by which an STD may be contracted--did not vitiate consent.

Front 21

R v Dee (1884)

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The accused pretended to be the victim's husband. Thus, her consent was not real in the
circumstances. Similarly, pretending to be the victim's boyfriend will render the consent invalid.

Front 22

Papadimitropouos v R (1957)

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If an accused bas misled someone over his personal attributes, he will not have perpetrated a fraud vitiating consent.

A young Greek woman who spoke very little English was led o believe that she had gone though a marriage ceremony with the accused, when in fact all that had happened was that he had given notice of intention to marry. There was evidence that the woman did not intend to have sex outside marriage, so the fraud was effectively as to the accused's marital status.

This did not vitiate her consent.

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Honest Mistake

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Although a person under 15 cannot consent to sexual assault (s. 14 CL(A)A 1935), they can plead an honest belief that the victim was 15 years or older, under PG v. Ireland (2005)

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PG v. Ireland (2005)

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SC unanimously held that, under s. 14, “defence” of consent was not open to the Def, however, because mens rea is essential to the offence, an honest belief that the 13-year-old victim was in fact 15 negatives any mens rea.

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CC v. Ireland (2006)

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Facts: constitutional challenge by a man convicted of statutory rape on the grounds that he could not put forward a defence of mistake as to age, where he reasonably believed the victim to be of legal age.

Decision:

SC found s. 1(1) unconstitutional on the basis that its failure to allow for a defence of mistake as to age rendered the offence punishable without proof of a mental element, which violated a Def’s rights to liberty, equality, due process, good name, and human dignity. The court refused to allow the trial court to accept the defence; the court refused to do so, as this would be judicial legislation. Thus, the Act had failed to survive 1937.

Front 26

Criminal Law (Sexual Offences) Act 2006

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Within two weeks of the SC’s decision, the Oireachtas enacted the 2006 with immediate effect.

As it refers to children of either gender, the 2006 Act replaces both the 1935 Act’s and the 1993 Act’s provisions.

Consent is still not a defence.

Defence of honest and reasonable mistake: s. 2(3): “it shall be a defence to proceedings for an offence under this section for the Def to prove that he or she honestly believed that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained 15 years”.

s. 2 (4): in assessing honesty – subjective, but with regard to presence or absence of reasonable grounds.

s. 5 exempts a female child under 17 who engages in sexual intercourse from liability under the Act.

Front 27

Criminal Law (Sexual Offences) Act 2006 - s. 2 and s. 3

Back 27

s. 2 and s. 3: new offences prohibiting sexual intercourse, buggery, aggravated sexual assault and section 4 rape with a child of either gender; s. 2 > up to 15; s. 3 > up to17.

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Differences between 1935 Act and 2006 Act

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i. 2006 Act contains a defence of honest and reasonable mistake;

ii. 2006 Act applies to children of both genders, although s. 5 defence applies only to females;

iii. 2006 Act has a much broader scope, not just applying to sexual intercourse, buggery or gross indecency;

iv. 2006 Act’s categories are different – the older category is up to 17; thus is is theoretically possible to be charged under both s. 2 and s. 3.

v. 2006 Act contains a higher penalty for “persons in authority”, i.e. parent; step-parent; guardian; grandparent; aunt; uncle; in loco parentis; educator; supervisor.

Front 29

Criminal Law (Sexual Offences) Act 2006 - Penalties

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Penalty: s. 2 offence (commission or attempt), max = life.

Penalty: s. 3 offences, person in authority: commission first time: 10 years, commission subsequent time 15 years.

Penalty: s. 3 offences, person in authority: attempt first time: 4 years, attempt subsequent time 7 years.

Penalty: s. 3 offences, person not in authority: commission first time: 5 years, commission subsequent time 10 years.

Penalty: s. 3 offences, person not in authority: attempt first time: 2 years, attempt subsequent time 4 years.

Front 30

s. 5(1) Criminal Law (Sexual Offences) Act 1993 - Sexual Offences Against the Mentally Impaired

Back 30

s. 5(1) CL(SO)A 1993: an offence to have sexual intercourse with or to commit buggery with a person with a person who is mentally impaired (unless they are married, or the Def reasonably believes they are married).

“Mentally impaired” = mental illness or handicap rendering the person unable to guard against self-exploitation.

Penalty: committing act, max = 10 years; attempting act, max = 3 years for first time, 5 years for subsequent time.

With the exception of gross indecency in males the offence is limited to intercourse and buggery and attempts at same - any act falling short of this will be prosecuted as sexual assault.

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s. 5(3) Criminal Law (Sexual Offences) Act 1993 - Defence

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s. 5(3): defence of not knowing or having no reason to suspect mental impairment.

Front 32

Incest

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Offences: male to have sex with sister, mother, daughter, granddaughter, half-sister.

Offences: female 17+ to have sex with brother, father, son, grandfather, half-brother.

Penalty: male max = life; female max = 7 years. (An anomaly?)

Sexual intercourse is the only sexual activity criminalised under incest law.

Step-relations, adopted relations and fostered relations are not covered by incest law.

Front 33

R. v Bernier (1998)

Back 33

Accused as employed in a psychiatric home. He slapped and touched ) male patients' testicles and pinched female patients' breasts. saying. "You are getting thin everywhere except here."

The accused's motive was not sexual gratification. Rather he engaged in this conduct for his own amusement.

The Quebec Court of Appeal overturned his accused's acquittal on a charge of indecent assault, saying:

... evidence of the aggressor's desire for sexual gratification is not an essential element of the offence .... Whether [his] motivation is a desire for sexual pleasure. a desire to
inflict suffering on another person, to humiliate or ridicule the victim. does not at all
change the criminal nature of his conduct.

Front 34

Malone (1988)

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The victim was too drunk to walk to her bedroom. She had to be carried there by the accused. who then proceeded to have sex with her. She gave evidence that she did not consent but was unable to offer any resistance.

Front 35

R v Mayers (1872)

Back 35

A woman is asleep cannot consent to intercourse.

Front 36

R v Olugboja (1982)

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The victim's friend had already been raped by the defendant's friend. She was informed that she would be raped too. The accused told her to take off her clothe. and she complied out of fear.

The Court of Appeal decided that this was not a real consent.

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R v Wellard ( 1978)

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The accused posed as a security guard and threatened the victim that unless she had sex with him he would tell her parents that she had been caught having sex in a
public place. As a result of this threat she submitted but her consent was held to be apparent, not real.

Front 38

Hegarty v Shine (1878)

Back 38

**damaged precedent** would probalbly be overruled, per DPP -v- C (2001)

In that case a woman sought damages as a result of becoming infected with a venereal disease as a result of what was said to be illicit sexual intercourse. She was denied recovery on the basis that the courts should not provide a remedy for immoral and illegal acts. Yet the woman could in no sense be said to be profiting from her immoral action if she were simply compensated for the physical injury she sustained as a result of contracting the venereal disease.

It is suggested that this is no longer good law in light of the legal developments already mentioned.

Front 39

R v Dica (2003)

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The court said of their decision in that case:

"The effect of this judgment in relation to s.20 [of the Offences Against the Person Act, 1861] is to remove some of the outdated restrictions against the successful prosecution of those who. knowing that they are suffering HIV or some other serious sexual disease, recklessly transmit it through consensual sexual intercourse, and inflict grievous bodily harm on a person from whom the risk is concealed and who is not consenting to it.

In this context, Clarence has no continuing relevance. Moreover, to the extent that Clarence suggested that consensual sexual intercourse of itself was to be regarded as consent to the risk of consequent disease, again, it is no longer authoritative. If however, the victim consents to the risk, this continues to provide a defence under s.20.

Although the two are inevitably linked, the ultimate question is not knowledge. but consent. We shall confine ourselves to reflecting that unless you are prepared to take whatever risk of sexually transmitted infection there may be. it is unlikely that you would consent to a
risk of major consequent illness if you were ignorant of it.

That said, in every case where these issues arise, the question whether the defendant was or was not reckless, and whether the victim did or did not consent to the risk of a sexually transmitted disease is one of fact. and case specific."