Document Sample

   Non-consensual offences and offences against
   the mentally disordered
   February 3rd 2011
   By Peter Rook

   Definition:     S.74 SOA 2003 Act
     “ … a person consents if he agrees by choice, and
      has the freedom and capacity to make that
     Cooper [2009] UKHL 42

    “My Lords, it is difficult to think of an activity which is
      more person and situation specific than sexual
      relations. One does not consent to sex in general.
      One consents to this act of sex with this person at
      this time and in this place.” Baroness Hale

   Dougal (2005) Swansea Crown Court
   “Convicting Rapists and Protecting Victims –
    Justice for Victims of Rape.” Office for
    Criminal Justice Reform
Proposed new definition.

   A complainant will not have had the
    capacity to agree by choice where they
    were so intoxicated through drink or drugs,
    that their understanding and knowledge
    were so limited that they were not in a
    position to decide whether or not to agree.
Benjamin Bree [2007] 2 Cr.App. R 13

   The 2003 Act by defining “consent” for the
    purposes of the law of rape, and by defining
    by reference to “capacity to make that choice”
    sufficiently addresses the issue of consent in
    the context of voluntary consumption of
    alcohol by the complainant. The practical
    reality is that there are some areas of human
    behaviour which are inapt for detailed
    legislative structures.
Benjamin Bree [continued?]

   The issue of “capacity to make the choice
    whether to agree” in circumstances where the
    complainant may have been voluntarily
    intoxicated does need to be addressed in a
    summing up. “ A mere recital of the 74
    definition is not good enough.”
Points that may need to be addressed in
summing up.
   (i) Consumption of alcohol or drugs may
    cause someone to become disinhibited and
    to behave differently from the way in which
    they would normally behave. A drunken
    consent is still a consent IF a person has the
    capacity to make the decision whether to
    agree by choice.
Points that may need to be addressed in
summing up.
   (ii) A complainant will not have the capacity to
    agree by choice where they were so
    intoxicated through drink or drugs, their
    understanding and knowledge was so limited
    that they were not in a position to decide
    whether or not to agree.
   (iii) A person may reach such a state without
    losing consciousness.
Points that may need to be addressed in
summing up.
   (iv) If a person is asleep or has lost
    consciousness through drink or drugs, they
    cannot consent, and that is so even though
    their body responds to the defendant‟s
Where Direction Unneccessary

   It may be unnecessary to give a direction on
    capacity where the complainant’s and the
    defendant’s accounts are completely at
    odds. Wright [2007] EWCA Crim 3473.
   Jury faced with stark choice between
    unconscious complainant or complainant,
    voluntarily intoxicated and capable of
    choosing whether or not to have sex.
R. v Hysa [2007] EWCA Crim 2056

   (i) There is no requirement that absence of
    consent has to be demonstrated or
    communicated to the defendant.
   (ii) The fact the complainant cannot
    remember whether she said “no” or not is not
    necessarily fatal to the prosecution.
   (iii) A lie by the defendant denying sexual
    contact with the complainant can be evidence
    of absence of consent.

   Consent
   The Master Plan
   A new crystal clear definition of consent (s.74) bolstered by the s.75 evidential
   S.75 Evidential presumptions arise very rarely
     Shanji Zhang [2007] EWCA Crim 2018 trial judge inappropriately directed the jury on
    the evidential presumption. Conviction upheld as jury stil in no doubt as to what they
    had to decide.

   See Gavin White [ 2010] EWCA 1929. Appellant (after relationship was over) sent via
    his mobile phone a photo of 2 of his fingers penetrating complainant’s vagina. The
    issue was whether complainant consented to digital penetration. Complainant stated
    she must have been asleep; Defendant stated complainant posed for photograph to
    be taken. C of A held S.75 did not arise. NB Even when it arises, it dos not shift the
    burden of proof. Duty of counsel
S76 Conclusive presumptions as to no
    consent/ belief in C’s consent
S76(2)(a) where the defendant intentionally deceived
  the complainant as to the nature or purpose of the
  relevant act;
S76(2)(b) where the defendant intentionally induced
  the complainant to consent to the relevant act by
  impersonating a person known personally to the
Essentially replicates the old common law but extends
  law to deception as to the purpose.
S76 has been narrowly construed by the court of
  Appeal. See Jheeta [2007] 2 Cr App R 477; Linekar
  [1995] 2 Cr App R 49 as considered in Jheeta; But
  see Devonald [2008] EWCA Crim 527
How s.75 presumptions operate.

   At the close of the evidence the judge must
    be satisfied that (i) the defendant did the
    relevant act (ii) at least one of the six
    circumstances in s75(2) existed and (iii) the
    defendant knew the circumstance existed.
S75(2) defines 6 sets of circumstances

   defendant using violence against the complainant
    or causing complainant to fear immediate violence.
   defendant causing complainant to fear violence
    being used against another person
   the complainant was unlawfully detained and the
    defendant was not.
   the complainant was asleep or otherwise
   complainant unable to communicate whether
    consenting because of physical disability
   stupefying substance administered to or caused to
    be taken by complainant without consent.
S75(2) circumstances:
[Evidential burden]
   IF the judge is so satisfied, the defendant
    bears an evidential burden to show that
    sufficient evidence has been adduced to
    raise an issue as to whether the complainant
    was consenting and/or as to whether the
    defendant reasonably believed that the
    complainant was consenting.
S75(2) circumstances:
[Evidential burden]
   The burden may be discharged by any
    evidence in the case.
   If the evidential burden has been
    discharged, the s.75 route is barred and the
    evidential presumptions will have no further
    role to play in the case.
S75(2) circumstances:
[Evidential burden]
   If the evidential burden has NOT been discharged,
    the judge will then direct the jury that absence of
    consent and/or absence of reasonable belief in
    consent (or both) can be established if they are
    sure that (i) defendant did the relevant act (ii) the
    circumstance existed and (iii) the defendant knew
    the circumstance existed.
   In Gavin White[2010] EWCA Crim 1929 the Court
    of Appeal agreed with this interpretation as to how
    s.75 operates.
Which characteristics are relevant to
whether a defendant had a
reasonable belief in consent?

Age? Sexual inexperience? Self-
induced intoxication? Learning
difficulty? Blindness? Deafness?
Blindness?Asperger’s syndrome?
Mental element in rape

   “Intention to penetrate” ie. deliberate
    penetration with the penis of the vagina,
    mouth or anus of the complainant. See
    Heard [2007] EWCA Crim 125, [2007] 1 Cr
    App R 473.
   “..did not reasonably believe the
    complainant was consenting.”
“Recklessness” no longer part of the
mental element.
   See Woods(W) (1982) 74 Cr. App.R. 312 in
    respect of the old law.
   If a defendant could pray in aid his
    intoxicated state to avoid the consequences
    of his actions, Parliament would have been
    expected to use the clearest words to
    express such a surprising result which would
    be “utterly repugnant to the great majority of
    people.” Per Griffiths LJ (as he then was.)
Section 1(2) SOA 2003

   “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.”
Editors of Archbold state :

   “It is a matter for the jury alone to decide whether a
    belief is reasonable: and that any rule to the effect
    that a person who is affected by alcohol or drugs
    could never make a “ reasonable” mistake would be
    an unwarranted intrusion into the province of the
   Does this mean that by substituting an objective test
    for a subjective test, self-induced intoxication has
    crept in through the back door as a factor the jury
    can consider?

   (i) May the defendant have genuinely believed that the
    complainant was consenting? Here, the jury are entitled to take
    into account any evidence of intoxication.
   (ii) Was the belief reasonable in all circumstances? Here,
    voluntary intoxication is not a relevant factor.
   Psychological condition that affects ability to determine ? See
    Sultan[2008] EWCA Crim 6 Asperger’s syndrome relevant under
    the old law (original diagnosis delusional jealousy).
   BUT surely a delusional belief can never be reasonable
    ..Erotomania. See Canns [2005] in the context of whether force
    used in self-defence was reasonable

   Balanced comment to prevent false assumptions is permissible
    where the position is well-established
   MM [2007] EWCA Crim 1558 - Late disclosure by young
    complainants where the defence allege fabrication.
   Doody [2008] EWCA Crim 2557- Late disclosure by adult
    complainants. Feelings of embarrassment and shame where rape
    occurs in an established relationship sufficiently well-known
   Miller [2010] EWCA Crim 1578 – Submission that judicial comment
    designed to question stereotypical assumptions about the behaviour
    of rape case complainants offended the common law principle that
    judicial notice can only be taken of facts of particular notoriety or
    common knowledge. Submission rejected. The countering of
    generalisations was the intent of such judicial observations.
    Crim 255. Judge went too far in his drum-like repetition that there
    was no obvious motivation for the complainant to tell lies
ER – end of generic expert evidence for the time
 ER [2010] EWCA Crim 2522 -Historical sex abuse.
  Accused convicted of serious sexual assaults on
  sister-in-law in the later 1970’s when the complainant
  was aged between 11 and 13. E’s wife was some 5 to
  6 years older than the complainant. .Evidence of
  psychotherapist( specialist in counselling in cases
  released to child family abuse) should not have been
  called. The remedy is neutral judicial warning and
  direction. Expert evidence carries danger it invests
  warning with special weight. It may lack any
  consideration of appellant’s contrary assertion.
  Spiralling expert evidence diverts attention away from
  critical witnesses.
Gloss on Turner [1975] QB 834: “only
admissible IF out with jury’
   Unless the expert evidence is directed to
    something which is quite outside both the
    experience of the jury and the ability of the
    judge to explain common understanding and
    common patterns of behaviour, it should not
    be used.
Mistaken assumptions / stereotyping
See Chapter 17 Crown Court Bench Book
   Compliance, failure to protest, lack of physical
    resistance, lack of injury ( To be included in written
    directions re elements of the offence)
    Self blame, feelings of shame, guilt particularly in
    context of existing relationship
   Late reporting
   Inconsistencies in the complainant’s account
   Drunk in male company, provocative clothing
   Rape takes place between strangers; an attractive
    male does not need to have sex without consent
Written directions?

   Matter for the judge
   Suggest desirable when dealing with
    elements of the offence (for instance, re
    consent prosecution do not have to prove
    violence or resistance.)
   Not appropriate when dealing with directions
    designed to prevent false assumptions.
    Counsel should be warned that such
    directions will be given. See Miller [2010]
    EWCA Crim 1578 (2011) Crim LR 79
Research into impact of judicial direction
and/or expert evidence upon juries
   “Turning Mirrors into Windows? Assessing the
    Impact of (mock) Juror Education in Rape Trials”,
    Br.J Criminology 49 Louise Ellison and Vanessa
   Conclusion cause for optimism in generating less
    prejudicial assessments of relevance of counter-
    intuitive behaviours , such as delayed reporting or
    calm court room demeanour. Expectation of physical
    resistance and/or injury may be less amenable to
    jury direction.
Offences concerned with protection of those with
mental disorders Ss 30 – 41 SOA 2003
 Cooper [2009] UKHL 42
 “Object of 2003 Act was to get away from
  the previous status-base approach which
  assumed all „defectives‟ lacked capacity
  while failing to protect those whose mental
  disorder deprived them of autonomy in
  other ways.” Old law both over-protective
  and under-protective
3 approaches identified ;(i) status ii)
  outcome (iii) functional approach
Offences concerned with protection of those with
mental disorders Ss 30 – 41 SOA 2003
   S30 Sexual activity with a person with a mental disorder
    impeding choice
   Intentional touching of a person who is “unable to refuse
    because of or for a reason related to a mental disorder”
   S30 (2) “B is unable to refuse if –
   (a) he lacks the capacity to choose whether to agree to the
    touching ( whether because he lacks sufficient understanding of
    the nature or reasonably foreseeable consequences of what is
    being done, or for any other reason), or
   (b) he is unable to communicate such a choice to D.”
   Cooper [2009] UK HL 42has given a wider interpretation to
Offences concerned with protection of those with
mental disorders Ss 30 – 41 SOA 2003
   Allegation under s.30
   C complainant , 28 year old woman, suffering from a schizo-affective disorder.
    Condition may come and go. Consultant recommends compulsory
   “these crackheads … they do worse to you.”
   Consultant psychiatrist gave evidence at trial that she would not have had the
    ability to consent at the time of the sexual contact.
   H of L reverse decision of Court of Appeal
   (i) Court of Appeal wrong in holding that “a lack of capacity to choose” cannot
    be person or situation specific
   (ii) Court of Appeal wrong in holding that an irrational fear that prevents the
    exercise of choice cannot be equated with lack of capacity to choose.
   (iii) “Or for any other reason” capable of encompassing a wide range of
   (iv) Provided “unable to refuse” is “because of or for a reason related to a
    mental disorder”, and other ingredients are proved, defendant is guilty.
   (iv) s.30(2) does not require that a complainant be physically unable to
    communicate by reason of mental disorder.

Shared By: