SEXUAL OFFENCES RAPE 7ressures in the wa# of co pli ents.

"landish ents etc$ a# "e legiti atel# directed towards securing consent$ Olugboja (8nglish Ct of Appeal! not followed #et in SA): 9hether non:(iolent threats (itiate consent is decided "# the )ur# using its &co "ined good sense. experience and knowledge of hu an nature'$

S48(1) CLCA: A person who has sexual intercourse with another person without the consent of that other person (a) knowing that that other person does not consent to sexual intercourse with hi ! or (") "eing recklessl# indifferent as to whether that other 5rauds person consents to sexual intercourse with hi shall (whether or not ph#sical resistance is offered "# that other person) "e guilt# of rape and lia"le to "e i prisoned for apadimitropoulos: 5raud (itiates consent onl# if it relates to life$ the nature of the act or the identit# of the accused$ ;0 tricked 1 into "elie(ing that she went through a PHYSICAL ELEMENTS arriage cere on# with hi $ ;1 consented to intercourse onl# "ecause of this "elief$ Sexual intercourse 1 understood the act of sexual intercourse 0's fraud did not (itiate consent$ S%: &sexual intercourse' includes an# acti(it# (whether of a /t is the mista!e as to the nature of the act or identit# of heterosexual or ho osexual nature) consisting of or the accused. rather than the accused's fraud. that (itiated in(ol(ing: consent$ (a) penetration of the la"ia a)ora or anus of a person "# <ut 0's fraudulent conduct induced consent an# part of the "od# of another person or "# an# o")ect! punisha"le under a less serious offence. eg$ of procuring (") fellatio! or sexual intercourse "# fraud or false pretences$ (c) cunnilingus$ R v Line!ar S*+(1): Sexual intercourse is sufficientl# pro(ed "# proof of ;1 prostitute agreed to intercourse "ecause 0 pro ised penetration$ to pa# her$ S*+(,): -o person shall. "# reason of his age. "e presu ed ;0 withheld pa# ent$ incapa"le of penetration$ 0's false pretences did not (itiate consent$ Abraham: /nsertion of fingers into a (agina co es within the SA definition of &intercourse'$ 3edical treat ent R v Murphy: Sexual intercourse is a continuing act. "eginning with penetration and ending with withdrawal$ Mobilio: A ere istake as to the accused's purpose is not So if 0 "eco es aware that 1 is not consenting after sufficient to negati(e consent$ co encing the act. "ut ne(ertheless continues. it is ;0 doctor penetrated 1 with a transducer purel# for the rape$ purpose of sexual gratification$ 1 understood the nature of the act (insertion of Lack o consent transducer into (agina) consent not (itiated$ As long as 1 still knew what was ph#sicall# "eing done Camplin: Lack of consent does not necessaril# in(ol(e to the . fraud does not (itiate consent$ resistance (also s48(1) CLCA)$ A istake as to the significance of the act is not Mayers: A sleeping (icti cannot consent to intercourse$ sufficient to (itiate consent$ Francis: A person who is too intoxicated to consent. cannot CLCA s*+(%): Agree ent to an act on the "asis that it is gi(e consent$ 2owe(er. lesser degrees of intoxication a# "e necessar# for the purpose of edical diagnosis. in(estigation consistent with consent$ or treat ent. or for the purpose of h#giene. is not consent to Rodin: /ntellectuall# disa"led (icti can consent to that act for another purpose$ intercourse onl# if: She understands the nature of intercourse. and Su!!este" re or# or $%&sical ele#ent o ra$e She is aware of her right to refuse$ Lynch: 3ere want of intelligence does not negati(e the 4ake consent out of rape ("# rel#ing on the (iolence of the a"sence of consent to a sexual act prosecution ust still accused rather than the agree ent of the (icti ) pro(e that 1 did not consent$ =rade rape ("# creating a range of sex offences of greater Morgan: A person can consent to intercourse onl# if she has and lesser seriousness) > letting )ur# decide how serious it is$ a "asic understanding of the sexual character of penetration$ (esp$ #ouths) FAULT ELEMENTS 4hreats and pressures Hallett: Consent extracted through force or threats of force is no consent$ 5isse: 4hreats to a fa il# e "er will (itiate consent. "ut possi"l# not threats to a stranger$ Egan (SC SA) 6nl# threats of (iolence a# (itiate consent$ 4rue consent ust "e free and willing consent$ R v "ro#n (SC SA): 7roof of full su")ecti(e fault is re?uired for "oth intercourse (the conduct) and lack of consent of the (icti (the circu stance)$ S48(1) CLCA: 7rosecution ust pro(e knowledge or reckless indifference with respect to non:consent$ $ v Morgan: An honest "elief in consent will excuse the defendant$

SEXUAL OFFENCES An honest "elief in 1's consent is inconsistent with knowledge or recklessness as to 1's non:consent honest "elief in consent will excuse the defendant$ <ut unreasona"leness of "elief can "e e(idence against the (iew that the honest "elief was actuall# held$ R v %o&nia! ' endry (SC SA): An honest "elief that the wo an is consenting will excuse the defendant. e(en if it is an unreasona"le "elief$ Egan (SC SA): &reckless indifference' re?uires realisation of the possi"ilit# that the (icti is not consenting$ 4he accused is &recklessl# indifferent' if he realises that she ight not "e consenting. "ut proceeds ne(ertheless$ So not reckless if 0 resol(es the issue "efore proceeding$ @3ere inad(ertence to the possi"ilit# of non:consent will not suffice for recklessness$A (itchener (-S9 Ct of Appeal! not followed in SA): 4otal indifference to the (icti 's consent is recklessness for the purposes of the fault ele ent of rape$ Criticis on the su")ecti(e test (") "# false pretences. false representations or other fraudulent eans! is guilt# of an offence > lia"le to "e i prisoned up to * #ears$ @4his is used where the (icti has consented to intercourse. "ut onl# "ecause of a false pretence etc$A IN'ECENT ASSAULT S%F: A person who indecentl# assaults another is guilt# of an offence > lia"le to "e i prisoned up to 8 #ears (or 1G #ears if 1 was under 1, #rs old)$ @Esed where intercourse didn't occurA P%&sical ele#ents "eal v (elley: An indecent assault is an assault that is itself indecent. or is acco panied with circu stances of indecenc#$ Har!in: 4he test for indecenc# is the ordinar# standards of oralit# of respecta"le people within the co unit#$ Assault is esta"lished "# threat of use of force. or the actual use of force. with knowledge or recklessness as to (icti 's non:consent$ (see notes) $onovan: Lack of consent ust also "e pro(ed$ Age affecting a"ilit# to consent: S%*(1): -o person under 18 #rs is dee ed capa"le of consenting to an# indecent assault co itted "# an# person who is hisHher guardian. teacher. school aster or school istress$ S%*(,): Su")ect to s%*(+). no person under 1* #rs is dee ed capa"le of consenting to an# indecent assault$ S%*(+): 9here the person is "etween 1F > 1* #rs old. hisHher consent is a defence to a charge of indecent assault if the accused pro(es that. at the ti e of the indecent assault. (a) he was under 1* #rs! or (") he "elie(ed on reasona"le grounds that the person was at least 1* #rs old$ Fault ele#ents ATTEMPTE' RAPE Fault ele#ents R v Evans: 4he fault ele ents for atte pted rape are: /ntention to ha(e sexual intercourse with the (icti . and either: Cnowledge that the (icti does not consent! or Deckless indifference as to whether the (icti consents$ P%&sical ele#ents Esual test of proxi it# applies$ Court: 5ault ele ents for indecent assault are: an intention to assault the (icti ! and an intention for the assault to "e indecent$ (imber: Decklessness as to the (icti 's consent will suffice$ In"ecent assault as an Alternati)e *er"ict to Ra$e S*%: /f. on a trial for rape or atte pted rape. the )ur#: (a) is not satisfied that the accused is guilt# of the offence charged! "ut (") is satisfied that the accused is guilt# of an indecent assault or a co on assault. or an atte pt to do so. the )ur# ust find the accused not guilt# of the offence charged. "ut a# find the accused guilt# of the lesser offence$ 4almon: 4he accused should onl# "e con(icted of indecent assault on a trial for rape. when the alleged indecent assault arises out of the sa e facts as those alleged to constitute rape$

5aulkner $ v Morgan's su")ecti(e test protects the indi(idual rights of the accused. "ut it neglects pu"lic welfare inappropriate li"eral "alance "etween accused's interests and (icti 's interests$ /nad(ertence as to consent for sex is culpa"le supports (itchener approach$ )ictorian Crimes Act re?uires reasona"leness of "elief: &/n considering the accused's alleged "elief that the co plainant was consenting to the sexual act. it must ta!e into account #hether that belief #as reasonable in all the relevant circumstances*$ Canadian 5ederal SC appajohn v R: An honest "ut unreasona"le istake a# negati(e lia"ilit#. onl# where there was e(idence fro sources other than the accused$ -B Crimes Amendment Act +,o- ./ 0123 re)ects 3organ > states that "elief in consent ust "e reasona"le$

PROCURIN( SEXUAL INTERCOURSE SF4: An# person who procures an# person to ha(e sexual intercourse (a) "# threats or inti idation! or