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23 Cards in this Set

  • Front
  • Back

Rape (definition)

If a person (A), with A's penis -

a) without the consent of another person (B) and

b) without reasonable belief that B consents,

penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B then A commits an offence to be known as the offence of rape.

Consent

- to be understood as free agreement



- does not exist where the conduct occurs at a time when B is incapable because of the effect of alcohol or any other substance of consenting to it

-does not exist where B agrees or submits to the conduct because of violence (or threats of violence) used against B or any other person

-does not exist where b is unlawfully detained by A

- does not exist where B is deceived as to the nature or purpose of the conduct

- does not exist where A is impersonating a person known to B

- where only indication of agreement is by a person other that B

- consent to conduct does not in itself imply consent to any other conduct

Assault by Penetration

Actus Reus:
- Penetration (by object other than penis)
- Absence of consent or reasonable belief in consent
Mens Rea:
Intention or recklessness
Key Case:
Garvock v HM Advocate (1991)

Garvock v HM Advocate (1991)

Assault by penetration

Sexual Assault

Actus Reus
-Can include; penetration, sexual touching, physical contact (incl - through clothes), ejaculation


-Absence of consent or reasonable belief
Does not include indecent assault

Mens Rea


-Intention or recklessness

Sexual Coercion

-Intention


- Absence of consent or reasonbale belief
- 'but for' test

Coercion to be present during Sexual Activity

-Absence of consent or reasonable belief


-for the sexual gratification or to distress, alarm or humiliate

Coercing a person to look at a sexual image

-Absence of consent or reasonable belief


-intention


-Not limited to photos of real people

Communicating indecently

-Absence of Consent or reasonable belief


-for the sexual gratification or to distress, alarm or humiliate
- Intentional


- No requirement that it is received or that the recipient appreciates the sexual content
-Implied consent in some circumstances

Voyeurism

-Absence of consent or reasonable belief


-for the sexual gratification or to distress, alarm or humiliate
-Observing someone in a private act

Administering a Substance for Sexual Purposes

-Without victim's knowledge or reasonable belief that victim knows
-Intention
-For the purpose of "stupefying or overpowering" the victim in order to engage in sexuage activity

Sexual Offences Where Consent is Irrelevant

-Rape of a Young Child


-Sexual assault on a young child by penetration


-Sexual assault on a young child


-Causing a young child to participate in sexual activity
-Causing a young child to be present during during a sexual activity
-Causing a young child to look at a sexual image
-Communicating indecently with a young child
-Sexual exposure to a young child
-Voyeurism towards a young child

What is a 'young child' and an 'older child' for the purposes of the Sexual Offences Act 2009?

- Younger child - under 13

- Older child - 13 to 16

True or False

Any sexual conduct with a child under 16 is always criminal?

False

- Any sexual conduct with a child under 13 is always criminal.

- Certain forms of sexual conduct are not criminal between children aged 13-16

- There is a proximity clause of 2 years

Sexual Offences (Scotland) Act [2009]


- Section 27 states :

It is NOT a defence to any offence that the accused believed the victim to be over the age of 13

What case references consent as the:

"common, straight forward... normal meaning" of the term

Marr v HM Advocate [1996]

What is the authority for the statement:
"A person is incapable, while asleep or unconcious or consenting to any conduct."

Lard Advocate's Reference (No 1 of 2001)

What does Section 13 of the Sexual Offences (Scotland) Act [2009] tell us about consent and what does it not tell us?

Section 13 tells us where consent is not present, but does not tell us where consent is present, or what it positively means.

DF v Griffiths

- Public Indecency
- Intention to be seen

DPP v Morgan

The case that overruled 3rd party consent

The meaning of 'Sexual' for the purposes of the statute:

Section 60. as understood by a reasonable person

Mutebi v HMA

- Consent withdrawn during the act
- Accused aquitted
- Failure of the 2009 Act?

Usai v Russell

Public indecency can take place in a private locus