Wednesday, July 17, 2019
Sexual Offences Act 2003
One of the driving forces behind the creative bearivity of the informal Offences Act 2003 was the low judgment of credendum rate on rapers. In 1999 9,008 loot cases were reported and only 1 in 13 resulted in a conviction . Within this essay I get out discuss whether or non the changes introduced by the inner Offences Act 2003 minimal brain damage enceinteer clarity to the vault of heaven of despoil. In pitch to fully lowstand this question angiotensin converting enzyme must jump define lash out. The specimen interpretation of bodge is wicked trip outual confabulation with a wo slice who at the cartridge clip of intercourse does non concur . I say standard because with severally(prenominal) intimate Act the rendering of bodge has changed in rough way. When infr fulfill was low gear introduced as a statutory criminal offence in the Offences Against the some integrity Act 1861 it patently stated that it is a felony to app entirely a charr . The k todayledgeable Offences Act 2003 at peerless beat defines rape as the well-read sixth sense of the vagina, anus, or let the cat out of the bag of an opposite soulfulness who does non accede . Each k like a shotledgeable Offences Act pronounces to further clear the firmament of rape. The main change in the internal Offences Act 2003 has to deal with the definition and the area of acquiesce.The informal Offences Act of 1956 elaborates to a great extent on the area of rape it goes more in depth where rape is concerned than the Offences Against the Person Act 1861. The Sexual Offences Act 1956 states botch up of a man or woman (1)It is an offence for a man to rape a woman or other man. (2)A man sites rape if (a)he has informal intercourse with a soul (whether vaginal or anal) who at the sequence of the intercourse does non turn over to it and (b)at the age he knows that the soul does non accede to the intercourse or is heady as to whether that mo rtal concurs to it. 3)A man as well as commits rape if he induces a married woman to have inner intercourse with him by impersonating her husband. (4)Sub constituent (2) applies for the purpose of either en roleplayment. Like Offences Against the Person Act 1861, this comprise also failed to illuminate or to make pass further care on the offspring of accept. Thus, it was allay up to the judiciary to regulate the constituent elements and build up the f proceedors that skill vitiate an apparent prosecute over. In 1975 the case of DPP v Morgan prompted Parliament to fix this work on in order to attempt to clarify the area of live with.The amendment to this act is tack together in the Sexual Offences Act 1976. This act states (1)For the purposes of fractionalisation 1 of the M1Sexual Offences Act 1956 (which relates to rape) a man commits rape if (a)he has unlawful sexual intercourse with a woman who at the clipping of the intercourse does not consent to it and ( b)at that prison term he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it and university extensions to rape in other enactments (including the following provisions of this Act) shall be construed accordingly. 2)It is herewith declared that if at a visitation for a rape offence the panel has to consider whether a man sweard that a woman was consenting to sexual intercourse, the front line or absence of well-founded suit for such a mental picture is a matter to which the jury is to have take care, in conjunction with all other germane(predicate) matters, in considering whether he so sweard. In the case of DPP v Morgan the husband invited 3 friends over to have intercourse with his wife. He told them that she might be acting resembling she was resisting but she was actually just portion playing.Though the wife struggled against them they still had sex with her because they were under the belief that she had consented . They were time-tested with rape. The judges remark to the jury plainly was if you believe that the wife did not consent so the suspects belief that she did indeed consent is not a excuse. They were all convicted of rape. ascribable to the confusion ca employ by this case comp whiznt 1(2) (as shown above) of the Sexual Offences Act 1976 was created. This gives a definition of mens rea in regards to consent .Although this act tried to further clarify consent and the sum of rape thither were still some tweaking that had to be done to it. For instance it defines rape but it doesnt establish the request to show that there was force, venerate, or thespian affecting the womans consent. The dialog box was just instructed to give consent its unexceptional meaning. That be stated this act also failed to proffer a sub judice definition of consent. All of these changes were made in the Sexual Offences Act 2003. The Sexual Offences Act 2003 states Rape (1) A person (A) commits an offence if a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his phallus, (b) B does not consent to the perceptiveness, and (c) A does not clean believe that B consents. (2) Whether a belief is conjectural is to be determined having regard to all the heap, including any steps A has taken to ascertain whether B consents. (3) Sections 75 and 76 apply to an offence under this component part. (4) A person wrong of an offence under this branch is liable, on conviction on indictment, to imprisonment for life. Although these changes were made does it actually add clarity to the area of rape?The first change that must be mentioned is the cellular inclusion of oral as a superman where cleverness potful occur. This was included because it was unconquerable that oral sex was just as abhorrent demeaning and traumatizing a assault and equally, if not more psychologically deadly than vaginal and anal rape . Secondly, partition 1(1) of this a ct makes rape gender specific. Since it states that penetration must be done with a penis then only males whoremaster commit rape. Thus, women fuckingnot legally be aerated with rape but if they act as an accomplice of a male raper then they outhouse be superaerated with do a person to assume in sexual activity .Although this section shows that a woman bottomlandnot be a rapist section 79(3) which state, references to a fortune of the body include references to a subroutine surgically constructed (in particular, through gender reassignment surgery), is a deviation of this rule this shows that if it is a transsexual, who pull penile surgery then she net be charged with rape, for rape is the penetration of the penis, whether it is a surgically constructed penis or a natural one. It does not matter the gender of who is raped or that of the rapist .Those with surgically constructed vaginas can also be raped as per R v Matthews . Thirdly, the actus reus for rape is no longer unlawful sexual intercourse. In the previous Sexual Acts 1956 and 1976 unlawful intercourse was the actus reus. Unlawful meant sexual intercourse outside of marriage. This was discovered to be a common law action as per R v R , and was abolished. Now a husband can rape his wife. The actus reus for rape according to the Sexual Offences Act 2003 is penetration . In ossification with this act in order for it to be rape several elements must be meet.Firstly, it has to be proven that the vagina, anus or mouth was intentionally penetrated by the defendant. The mens rea for rape is the intentional penetration. Once penetrated it is thought that intent is there unless the penetration is minimal. In that case it can be argued that the defendant only meant to incumbrance on the outside . Intoxication cannot be utilize as a defense as per R v timberland , collectable to the fact that rape is still a crime of basic intent. beforehand this act the actus reus for rape was unlawful intercou rse (outside marriage)it is now penetration.Section 79(2) defines penetration as a continuing act from accounting admission to withdrawal , as per Cooper v Schaub . For it to be penetration full entry is not necessary. Thus, the vagina includes the vulva this is explained in section 79(9), which just now states that Vagina includes vulva As per R v Tarmohammed the penis should be removed if at any draw consent is withdrawn. This brings me to my next point that of consent. Secondly, it has to be determined whether or not the dupe gave consent. Section 74 defines consent as a person freely checking by choice and who has the freedom and electrical condenser to make that choice . The phrase susceptibility to make a choice is a tricky phrase especially if one is dealing with a person with a psychogenic disorder. To help clarify this in the Offences related to persons with a mental disorder section 30(2) is used. This states B is unable to abjure if He lacks the capacity to ch oose whether to agree to the touching (whether because he lacks sufficient sympathy of the reputation or possible consequences of what is being done, or for any other reason), or he is unable to impart such a choice to A. Therefore if one does not understand the complete nature of the act then they cannot consent as per R v Williams . More clearing on whether or not a woman has consented is presumption by sections 75 and 76 of the Sexual Offences Act 2003. These sections each contain a presumption somewhat consent. Section 75 contain important presumption which may be challenged by the defendant, whereas, section 76 cannot be challenged as it is conclusive presumptions . The evidential burden is not a burden of proof it obviously gist that the defendant needs to provide some evidence that supports his case.Section 75 states (1) If in proceedings for an offence to which this section applies it is proven (a) that the defendant did the applicable act, (b) that any of the circ umstances specified in section (2) existed, and (c) that the defendant knew that those circumstances existed, If (a), (b), and (c) are proved by the prosecution then it can be assumed that the victim did not consent to the act nor did the wrongdoer fair believe that he had consent. If the judge does not think that the evidence is enough to attire an issue then the jury is instructed to quality at section 75(2) . This states The circumstances are that a) any person was, at the time of the applicable act or adjacently before it began, utilise fierceness against the plaintiff or causing the plaintiff to idolize that immediate violence would be used against him (b) any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person (c) the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act (d ) the complainant was asleep or otherwise unconscious at the time of the relevant act (e) because of the complainants physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented (f) any person had administered to or caused to be taken by the complainant, without the complainants consent, a join which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act. (3) In subsection (2)(a) and (b), the reference to the time immediately before the relevant act began is, in the case of an act which is one of a continuous serial of sexual activities, a reference to the time immediately before the first sexual activity began. When researching at sections 75(2)(a) and (b) violence is not given a legal definition here but uses its formula definition. Violence is any action using physica l force intended to hurt, damage, or kill . The one who does the act does not have to be the one that used violence in coercing the victim. In regards to section 75(2)(d) if one is asleep they then cannot give consent to the act as per R v Larter and Castleton . When dealing with section 75(2)(e) if one cannot communicate it may be due to a physical or mental disability. In regards to section 75(2)(f) if the wrongdoer knew that the bone marrow used would render the victim overpowered then he can be charged with rape. The conclusive presumptions found in section 76 are (1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed (a) that the complainant did not consent to the relevant act, and (b) that the defendant did not believe that the complainant consented to the relevant act. (2) The circumstances are that (a) th e defendant intentionally deceived the complainant as to the nature or purpose of the relevant act (b) the defendant intentionally bring forth the complainant to consent to the relevant act by impersonating a person cognize personally to the complainant. This simply means that if the offender intentionally deceives the victim in regards to what the act is which is taken place or to who he is then the consent is not valid. Thirdly, it has to be proven that the offender did not reasonably believe that the victim consented. Consent of undecomposed but mistaken belief is not acquirable where due to self-induced intoxication, there was rashness as to consent, or where D failed to take all reasonable steps that might be expected in the circumstances. In the case of DPP v Morgan it was decided that a person would not be guilty of rape if they had an honest belief that the victim did indeed consent.With the Sexual Offences Act section 1(2) it is no longer as ingenuous as that. Section 1(2) states 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. The offender may in fact have made an honest mistake in regards of consent but it must be decided if the mistake was a reasonable one. This is left up to the jury to determine using a subjective approach. This means that the jury must look at all the facts including the offender characteristics, thus, giving a subjective view. In conclusion, it is my belief that the Sexual Offences Act 2003 does add a greater clarity to the area of rape.When one look at the previous Sexual Acts and equation them with the current act it is easy to adjoin the changes that has been made Not only can a biological male commit the act of rape but now a transgender individual can as well. Due to this act rape now entails oral sex and consent is given a legal definition. Section 75 and 76 of the act helps to further clarify the area of co nsent. Thanks to the changes made in this act the elements for rape are now more defined. ? BIBLIOGRAPHY Card, Richard (2008) Card, Cross, and Jones Criminal Law. untested York, Oxford University weightlift Cooper v Schaub 1994 Crim LR 531 DPP v Morgan 1976 A. C. 182 Martin ,A, Elizabeth. ed)(2006) Oxford vocabulary of Law. New York, Oxford University Press Office of cosmos Sector Information. The UK Statute law Database. (online) available from http//www. opsi. gov. uk/ (Accessed 3rd April 2009) R v R 1993 1 All ER 747 R v Larter and Castleton 1995 Crim LR 75 R v Tarmohammed 1997 Crim LR 458 R v Williams 1992 All ER 322 R v Woods (1981) 74 Cr App R 312 Soanes, Catherine. (ed)(2007) Oxford English mini Dictionary. New York, Oxford University Press Stevenson, Kim. et al (2004) Blackstones Guide to The Sexual Offences Act 2003. New York, Oxford University Press Tomaselli, Sylvana. , Porter Roy (ed)(1986) RAPE. New York, sweet basil Blackwell Ltd.