Question 1

James, an artist, is a member of a society which has persuaded him that women always want sex even though they may not appear to.  The society’s aim is to encourage its members to ‘give sexual pleasure to women.’  James decides that to be faithful to this aim he should have sex with Ada, his long-standing friend.  Ada has always made it clear that they will never be more than good friends, but James now believes that she does not mean this.  He goes to her bedroom where she is asleep.  He climbs into bed and has sexual intercourse with her.  She only vaguely recalls this incident the next morning. The following week James meets Felicia in a club.  While they are chatting she tells him that she suffers from migraine headaches.  Jake tells her that he is a faith healer with mystical powers and can cure such headaches through the medium of sexual contact.  Felicia is doubtful but thinks it is worth a try and they go to her house where they have sexual intercourse. James is then invited to a society dinner, where he meets Drew, the leader’s 16 year old daughter.  Jake and Drew go out into the garden for a walk and, when out of view of the house, James asks Drew to perform oral sex on him.  Drew does not want to, but has been taught by her father never to deny a man sexual pleasure and so she agrees to James’s request.

Assess the criminal liability, if any, of James.

Answer guidance

This question concerns the offence of rape, which is defined in the Sexual Offences Act 2003. Sexual intercourse must take place, without consent (section 1). If the prosecution prove beyond all reasonable doubt that D intentionally penetrated Ada whilst she was sleeping and that James knew she was asleep, it will be evidentially presumed that she did not consent and that he did not reasonably believe she consented (s75(2)(a-f).  The facts disclose that she only had a vague recollection of the incident the next morning.  This would appear to indicate that she was asleep and did not consent. However, the jury will also need to take into account James’s committed belief that all women who say ‘no’ to sex really mean ‘yes’ and that this was the result of society membership the mission of which is to ‘give sexual pleasure to women.’  The fact that he was also an artist has no relevance. Is J guilty of the rape of Felicia? Was consent induced by fraud? By professing mystical healing powers and the ability to cure headaches by sexual contact, James may fall foul of s76(2)(a): fraud as to nature or purpose.  s76 is aimed at fraud as to the ‘sexual’ nature of the act. James will have committed rape if he intentionally penetrated Drew’s mouth without consent and he had no reasonable belief in consent.  The issue for the prosecution in relation to the actus reus will be whether she consented or not (see above discussion). 

Question 2

Adele was a first-year university student.  At the beginning of term, she met Brian in a university bar.  He informed her that he was a new senior lecturer in her department.  Brian invited Adele to a restaurant one evening and promised to give her first class marks in the examinations if she would sleep with him.  Adele agreed on condition that he wore a condom.  Brian agreed, but removed the condom before intercourse.  The following week, Brian told Adele that unless she slept with him again he would award her a ‘fail’ in the examinations.   Adele was hesitant but Brian slipped a drug into her drink and she complied with his demand.  On this occasion, Brian was drunk because he had consumed several whiskies.  He had sexual intercourse with Adele. Some months later, Adele discovered that she had been infected with a serious sexual disease.  It transpired that Brian was not, in fact, a lecturer, but unemployed.  He later stated that he believed Adele had been an enthusiastic partner.

Discuss whether Brian has committed any offences.

Answer guidance

Consider whether Brian is guilty of the rape of Adele. The question is whether Brian’s failure to wear a condom amounts to a lack of consent. Consent is defined in s74 of the Act and in assessing consent the court may have recourse to s75 and 76 which raise evidential and conclusive presumptions as to consent in certain circumstances. Was Adele’s consent obtained by fraud? The second count of rape may give rise to the evidential presumption on consent. Does his threat fall with s75(2)(a)? The drug slipped into her drink would trigger the presumption under s75(2)(f). His belief in Adele’s enthusiasm is unlikely to be sufficient evidence to rebut this presumption. Students should remember to consider the effect of Brian’s intoxication. In any event, his assertion that he is a lecturer may trigger s76 – fraud as to nature of the act. In short, Brian will be guilty of rape if he intentionally penetrated Adele and he had no reasonable belief in consent.

Question 3

Critically assess the changes to the law made by the Sexual Offences Act 2003.

Answer guidance

This essay question requires you to outline the changes made to the law by the Sexual Offences Act 2003 in relation to consent. The Act provides some major changes in the physical definition of sexual intercourse which is now extended, but the main changes are in relation to consent. This is now defined in section 74 as follows ‘a person consents when he agrees by choice, and has the freedom and capacity to make that choice’. The defendant commits rape if he intentionally penetrates the victim without reasonable belief in consent. In assessing reasonableness, the court may have recourse to certain evidential presumptions, including whether any threat of violence was used and whether substances were administrated. This presumption will operate unless the defendant can adduce evidence to rebut it. In addition, a conclusive presumption against consent will operate where there is fraud or impersonation. The presumptions, it may be argued shift the onus of proving lack of consent from the prosecution to the defence, so may improve conviction rates. On the other hand, the provisions may be viewed as compromising the defendant’s right to a fair trial.

Question 4

On Thursday night, James meets Carly in a nightclub. He falsely claims to be a footballer with Chelsea FC. Carly is impressed by this and agrees to go to James’ flat that night, where they have sex. The following morning, James confesses to Carly that he lied about being a professional footballer. Carly is angry with James but agrees to meet him the following Saturday. When they next meet, James introduces Carly to his friend Didier. Didier and Carly start chatting and orders several rounds of drinks, always ordering a double for Carly instead of a single. Didier drinks water. As the evening progresses, Carly becomes giggly but remains lucid. They go to her flat, where Carly collapses, slumped against the wall. Didier picks her up and takes her to the bedroom where they have sex. Carly knows what is happening but does not try to prevent him from having sex with her. Didier leaves. The following morning, Carly reports both James and Didier to the police, claiming that she has been raped by them both. Under questioning, James says that he took pills before leaving his home but cannot remember anything about the evening, and Didier says that he was sober but honestly thought that Carly had consented.

Advise the Crown Prosecution Service of the criminal liability of James and Didier.

Answer guidance

James’ liability for rape under the Sexual Offences Act 2003 should be considered first. Rape is defined under section 1. The most important issue here is lack of consent. The fraud issue must also be discussed. Under s76 if James is found to have deceived Carly as to the nature or purpose of the act, or where there is impersonation of a person known personally to Carly, the jury may conclusively presume that she did not consent. Here, the lies relate to a profession, not to a person. Furthermore, the alcohol consumed does not appear to have clouded Carly’s judgment (s74 and s75). The defences of automatism and intoxication would not apply if the above argument is not accepted. In relation to Didier, whilst s76 would not apply in this scenario, there may be an argument that one of the circumstances in s75 arises. The jury will be able to presume that Carly did not consent if they are satisfied that Didier ‘administered’ a substance capable of stupefaction or overpowerment at the time of the sexual intercourse. How much alcohol was Carly expecting to consume? In any event, according to section 74, Carly must have agreed by choice, and to have had the capacity and freedom to make that choice. In these circumstances, this is unlikely. Her intoxicated state would certainly affect her capacity (R v Bree [2007]). The onus would be on Didier to prove that he reasonably believed in consent.