Criminal 5: Sexual Offences and Non Fatal Offences Against the Person by Sophie https://padlet.com/sxh1006/g09uya9n5x32 en-us 2017-02-07 10:55:40 UTC 2023-11-26 14:50:36 UTC hello@padlet.com R v Ireland [1998] AC 147 (HL) sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152086707 The defendant left silent phone calls to three female victims.

Lord Steyn: 'what may heighten her fear is that she will not know what the caller may do next.'
'I conclude that an assault may be committed in the particular factual circumstances which I have envisaged. For this reason I reject the submission that as a matter of law a silent telephone caller cannot ever be guilty of an offence under section 47.'

Assault occurs if there is fear of harm 'within a minute or two'. Confirmed in Constanza [1997].

]]> 2017-02-07 10:57:43 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152086707 BATTERY sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152089098 Actus Reus: the defendant touches or applies force to the victim.
Mens Rea: the action was intended or reckless.]]> 2017-02-07 11:10:25 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152089098 Touching or Violence? sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152089268 Apprehension of being touched or kissed can amount to assault.

It is arguable that apprehension of psychological harm is assault. 

The threat to cause harm that would not require touching seemingly does not count as assault.]]> 2017-02-07 11:11:15 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152089268 Words sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152090828 Words can amount to common assault if they cause the victim to apprehend imminent harm.]]> 2017-02-07 11:20:01 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152090828 Intention sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152091787 Logdon v DPP [1976]: The defendant argued that he did not intend harm, but it was anassulat because a fear or imminent assault was created in the victim.

Still meets mens rea requirement because he clearly intended the victim to fear imminent harm.]]> 2017-02-07 11:25:10 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152091787 Conditional sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152092206 R (Kracher) v Leicester Magistrates' Court [2013]: defendant said 'Fuck off. If you come round the back I will beat you up. This was conditional but held to be an assault because victim apprehended imminent violence.

But Tuberville v Savage (1669) is interpreted as a non-assault because the words negated the threat. ]]> 2017-02-07 11:27:16 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152092206 Act/Omission sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152093177 Unclear.

Fagan v Metropolitan Police Commissioner [1969] suggests it must be an act.

Perhaps an omission if it unlawful.


]]> 2017-02-07 11:31:55 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152093177 ASSAULT sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152093362 Actus Reus: defendant causes victim to apprehend unlawful force.

Mens Rea: intention or recklessness by the defendant that the victim would apprehend unlawful force.]]> 2017-02-07 11:32:57 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152093362 sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152095202 PRESERVATION OF BODILY INTEGRITY IS THE UNDERLYING PRINCIPLE OF THESE OFFENCES]]> 2017-02-07 11:43:51 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152095202 Fagan v Metropolitan Police Commissioner [1969] sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152095436 The defendant drove the car onto the victim's foot and left it there. Battery was caused via an object.]]> 2017-02-07 11:45:33 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152095436 Trivial Acts? sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152095618 The victim does not have to feel the touch, or experience harm. Spitting on someone (Thomas [1985]) and throwing beer on someone (Savage [1992]) constitutes battery.]]> 2017-02-07 11:46:51 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152095618 Omissions sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152095749 Usually by failing to move.
Fagan - not removing the car.
DPP v Santa-Bermudez [2003]: 'where someone (by act or word or a combination of the two) creates a danger and thereby exposes another to a reasonably foresseeable risk of injury which materilaises, there is an evidential basis for the actus reus of an assault occasioning actual bodily har.']]> 2017-02-07 11:47:45 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152095749 Indirect Action sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152096559 Savage [1992]: Interefering with car brakes which later caused a crash constituted battery.
DPP v K [1990]: acid flew into a victim's face indirectly. This still constitutes a battery.
Haystead v Chief Constable of Derbyshire [2000]: direct force to a mother caused indirect force the baby who was dropped. This met the requirements for battery.]]> 2017-02-07 11:52:26 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152096559 sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152476981 2017-02-08 14:48:54 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152476981 Collins v Wilcock [1984] sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152481718 Lord Justice Goff: 'Every person's body is inviolate,' and
'any touching of another person, however slighlty, may amount to a battery.'

However, 'so widely drawn a principle must inevitably be subject to exceptions...a broader exception has been created to allow for the exigencies of everyday life. Generally speaking, consent is a defence to battery and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact.'

The touching does not have to be aggressive or hostile.]]> 2017-02-08 14:59:07 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152481718 GRIEVOUS BODILY HARM sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152491275 The Actus Reus and Mens Rea depends on which section of the OAPA the defendant is convicted under.]]> 2017-02-08 15:22:30 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152491275 ACTUAL BODILY HARM sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152491450 Actus Reus: defendant causes victim to suffer actual bodily harm.

Mens Rea: defendant intends or was reckless to the assault or battery.

Whether the defendant foresaw ABH is irrelevant (Savage and Parmenter [1992])]]> 2017-02-08 15:22:58 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152491450 sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152498037 2017-02-08 15:40:40 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152498037 Element of Assault sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152502069 Assault is required for an offence under s 47!

In Roberts [1972], apprehension of harm caused the victim to jump out of a car which caused ABH.]]> 2017-02-08 15:51:19 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152502069 What constitutes ABH? sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152504282 Donovan [1934]: 'any hurt or injury calculated to interfere with the healt or comfort' or the victim.

Chan-Fook [1994]: 'Harm should 'not be so trivial as to be wholly insignificant.'

T v DPP [2003]: Temporary loss of consciousness.

Reigate Justices ex p Counsell [1984]: Bruisings, grazes, causing of tenderness.

DPP v Smith [2006]: Cutting off a pony tail is ABH because hair is part of the body. Harm is required, not pain.

Guidelines are given by the CPS: (link)]]> 2017-02-08 15:56:40 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152504282 Psychological Harm sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152506457 Ireland [1998]:These can be included if they are medically recognised condition.

Dhaliwal [2006]: the victim suffered psychological distress because of domestic violence but experts could not conclude that it was a recognized illness.]]> 2017-02-08 16:01:35 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152506457 Section 20 sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152511419 Actus Reus: the defendant unlawfully wounded or inflicted grievous bodily harm on the victim.

Mens Rea: the defendant foresaw that the victim may suffer harm.

The defendant does not need to foresee GBH.]]> 2017-02-08 16:11:58 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152511419 Article: Weait - 'Knowledge, Autonomy and Consent: R v Konzani' sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152515513 Defence Prior to Konzani - consent was normally only a defence if the injury amounted was not ABH or GBH. Dica suggested that Parliament should make guidelines for issues concerning consent, disclosure and HIV.

Position After Konzani - Honest belief could be a defence, but only where the consent could provide a defence. In this case it couldn't because the complainants ran a risk, but did not consent to that risk. 

This changes the interpretation of 'recklessness' - it requires conscious, unjustifiable risk-taking AND non-disclosure.  This suggests that those who don't consent to the risk are not responsible for the consequences.

Relevance of Knowledge - language of 'fault' and 'ignorance'. What if the complainant could foresee the risk but chose to ignore them? Even if there is no disclosure, many people would known of the potential risk or STIs. 

Circumstances where there could be a defence were suggested by the Court (contracted HIV in hospital or honest belief that partner was aware of condition), but these only consider a context or a third party involvement. Neither considers individual responsibility.

Autonomy - the personal autonomy justification was not adequately explored by the Court of Appeal. Is it the law's function to protect personal autonomy? A positive duty is imposed on those with HIV but not on those who choose to take risks. Should this be limited to HIV or should any STI or serious illness always be disclosed to anyone who has a possibility of contracting the disease? This scope casts the net too wide.

Public Health - Does the use of condoms negate recklessness? There are no clear guidelines as to what may preclude conviction. Will potential conviction dissuade people from being tested for HIV? Infected people may not disclose this information after sex so victims could go undiagnosed for a long time. The public policy effects could be the opposite of what was intended. Ultimately, everyone is responsible for preventing the spread of HIV.]]> 2017-02-08 16:21:05 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152515513 What constitutes GBH? sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152516473
An unlawful act

Wound - any break in the continuity of the whole skin (C v Eisenhower [1984]). The OAPA states that this can be caused 'with or without a weapon'. The ambiguity suggests that the cause is not overly important.

Grievous Bodily Harm - This is for the jury to decide in line with contemporary social norms (Golding [2014]). Any objective test is unclear. Bollom allows the impact on the particular victim to be taken into account.

DPP v Smith [1961]: 'really serious bodily harm'.

Infliction - Burstow suggests that this is synonymous with 'cause'.]]> 2017-02-08 16:23:06 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152516473 sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152518471 For GBH there is no need to establish that there was an assault.

This is different from all other OAPs.]]> 2017-02-08 16:27:17 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152518471 Psychological Harm sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152521504 GBH can include very serious psychological harm if there is a serious identifiable clinical condition, Chan-Fook [1994].]]> 2017-02-08 16:33:39 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152521504 Recklessness sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152524522 Cunningham recklessness:

  1. The defendant was aware that there was a risk to his/her conduct that could cause a particular result.
  2. The risk was unreasonable.
Courts use this to determine maliciousness.
]]> 2017-02-08 16:40:30 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152524522 R v Savage and Parmenter [1992] sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152526843 The mens rea of malicious wounding was established, and R v Roberts [1972] was found to be the authority.

There need be no proof that the defendant foresaw ABH. There merely needs to be proof that the assault occasioned ABH.

For a s 20 convinction, there need only be foreseeability of harm. The actus reus and mens rea do not match. This is established in R v Mowatt [1968].]]> 2017-02-08 16:45:18 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152526843 Distinguish between Section 18 and Section 20 sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152541390 Section 18:
  • there must be intent. 
  • Harm was intended. 
  • Harm is inflicted 'whatsoever', rather than with or without weapon.
  • Injury caused to 'any person'.
Section 20:
  • only requires recklessness.
  • Harm was foreseen.
  • Harm inflicted with or without a weapon.
  • Injury caused to 'any other person.'
]]> 2017-02-08 17:22:49 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152541390 Section 18 WITH INTENT sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152542304 Actus Reus: Defendant unlawfully wounded or caused GBH.
Mens Rea: The Defendant intended to cause GBH (not a wound) or intended to prevent lawful apprehension (resisted the arrest of a person, even if they thought it was an unlawful arrest). 

]]> 2017-02-08 17:25:20 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152542304 TRANSMITTING DISEASE sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152548779 2017-02-08 17:40:56 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152548779 R v Dica [2004] sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/152551696 The defendant was aware that he was HIV positive but had unprotected sex with two women who caught the virus.

Judge LJ: 'If the defendant concealed the truth about his condition from them, and therefore kept them in ignorance of it, there was no reason for them to think that they were running any risk of infection, and they were not consenting to it. On this basis, there would be no consent sufficient in law to provide the defendant with a defence to the charge under section 20.

Following R v Brown [1994], violence can't be excused by consent as 'an extreme, indeed horrific kind, which caused grievous bodily harm, was held to be unlawful, notwithstanding that those who suffered the curely positively welcomes it'. But any general principle which could interefere should be dealt with by Parliament.]]> 2017-02-08 17:48:04 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/152551696 R v Konzani [2005] sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/153013437 The appellant failed to inform three women that he was HIV positive. They consented to unprotected sex, unaware of his disease, and all contracted the virus. Consent to unprotected sex was found not to be a valid defence as they had not given informed consent to the specific risk or a fatal disease.

'She cannot give an informed consent to something of which she is ignorant. Equally, her personal autonomy is not normally protected by allowing a defendant who knows that he is suffering from the HIV virus which he deliberately conceals, to assert an honest belief in his partner's informed consent to the risk of the transmission of the HIV virus. Silence in these circumstances is incongruous with honesty.']]> 2017-02-10 10:42:38 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/153013437 Article: Reece - 'Rape Myths: Is Elite Opinion Right and Popular Opinion Wrong?' (2013) sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/153013645 There has been a huge increase in the number of rapes reported but this is unmatched by the rise in rape convictions.

Whilst attitudes have and continue to be somewhat misogynistic regressive public attitudes have been exaggerated.

Reform - The Sexual Offences (Amendment) Act 1976 clarified the need for consent and prevented use of sexual history as evidence. The Youth and Criminal Justice Act 1999 further restrict sexual history evidence. Marital, oral and anal rape, and male victims have also been recognised. The Sexual Offences Act 2003 defines the parameters of consent, and that a partner's belief in consent must be reasonable.

Justice Gap - Only 7% of reported rapes become convictions. This is similar to burglary so rape is not anomalous. Perpetrators are easy to identify but the state of mind of the complainants are difficult to prove. Only 60% of those who could classify their experience as rape considered themselves to be victims of rape. Comparative studies appear to be based on speculation than empirical. 

The Turn Towards Attitudes - New terms used, such a 'agreement', 'choice', and 'freedom' are difficult to define. If sexual history can't be accessed, will jurors look for other clues elsewhere? 

Rape Myth Methodologies - The AMMSA scale (Acceptance of Modern Myths about Sexual Aggression) aren't entirely useful. Answers that are ethically 'wrong' are inconsidered to be 'inaccurate'; respondents are more aware of the politically correct answers; there are a variety of 'rape myths'.

'Real Rape' Myth - The dark alleyway, violent attack by a stranger where there victim physically resists. This stereotype is not disputed as a myth. Perhaps it is seen as the 'norm', rather than 'real'? Do people believe more in the belief of the myth than the myth itself? The methodology of the Sentencing Advisory Panel study showed that respondents were uncomfortable with ranking the seriousness of different rape scenarios. It is difficult to provide objective assessments of types of rape. There is a slightly higher conviction for 'real rape' - is this because the elements make a conviction more compelling?

'Women Cry Rape' Myth - Police can be seen as part of the myth problem. However, they have to balance sympathy with scepticism. Alternatively, officers who take victim statements can be reluctant to highlight inconsistencies in stories. There is little analysis given to false allegations.

'Coffee' Myth - Women who invite men back for coffee are asking for sex. When this question is asked by investigators, this could be to ascertain many things, not necessarily that coffee = sex. Many people do not believe this myth but they may believe that inviting a man in for coffee suggests ore willingness for sex. Consent can't be objectively ascertained because it looks different to everyone. Vocal affirmation can still be coerced out of someone. Context always needs to be considered as there is no objective formula.  Do women put themselves in 'coffee' scenarios because the feel they have to be passive? There are different opinions on whether sex and rape are interconnected.  Myths about gender are probably more problematic than rape myths.

'Coffee' as Context - There are more generalizations about sex than rape. Jurors are right to exclude sex before they conclude rape. The complainant's state of mind is as important as the defendant's.

'Coffee' as Culpability - The wording used in some of the most prolific studies is problematic. 'Responsible' is used, rather than 'blame'. Often women are deemed to be partially responsible, which is perhaps the respondents' way of creating nuance when answers were binary - they may be referring to scenarios where women have made themselves more vulnerable. It should be acknowledged that women's behaviour can correlate with rape. There are also different degrees of harshness in victim blaming. Rape victims are not penalised for being drunk in their compensation where victims of other crime can be. 

Rape Myth Reform - There is a difference between law on the books (elite opinion) and law in action (popular opinion). Abolishing the jury wouldn't necessarily improve outcomes as barristers and judges would be left to make all decisions. ]]> 2017-02-10 10:43:57 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/153013645 Case Notes sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/153269568 2017-02-12 12:31:27 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/153269568 Current Law for HIV Transmission sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/153306296 If D is HIV positive and  causes that person to become HIV through sexual relations he is guilty under:

Section 20
If D is aware of the risk that could cause harm through sexual relations AND
The victim has not given consent to the risk of contracting HIV.

Section 18
If D intends to cause GBH by transmitting HIV through sexual relations, regardless as to whether the victim consent to the risk.]]> 2017-02-12 21:33:42 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/153306296 UNCLEAR EXCEPTIONS FOR TRANSMITTING DISEASE sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/153307110 Recklessness - What is the victim has not been diagnosed? They may know there is a possibility of infection. What if the use a condom to reduce the risk?

Consent - the boundaries of consent are unclear. What if the partner knows of the HIV but is unaware that the disease could be transmitted through sex? What if V knows that D is promiscuous? Most people will know the risks of unprotected sex.

Transmission - what if a disease is transmitted in a non-sexual way? In R v Marangwanda [2009] gonorrhoea was transmitted through a towel. What about HIV transmission from mother to baby?

Disease - what about other STIs. Not many are fatal but they can have severe implications.]]> 2017-02-12 21:43:34 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/153307110 Issues with Assault sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/153312693 The definition is unclear: is it the creation of fear or closer to attempted batter?

Horder, 'Reconsidering Pyschic Assault [1998]: reconsiders assault as 'threatening confrontation'.

It is not the same as bodily harm and there is an invasion of personal space.

Links to Lord Ackner and tort for damage due to nervous shock.

The moral element negates the need for immediate threat, as seen in Ireland.

In light of this would Tuberville be reevaulated; Savage was psychically assaulted?]]> 2017-02-12 23:04:48 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/153312693 Criticisms of OAPA 1861 sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/153312947
  • The Act isn't adequate for modern problems: email harrasment, racial assaults, stalking, HIV transmission.
  • Sentencing -  s 47 and s 20 have the same maximum sentence of five years. Is the distinction between intention and recklessness enough to warrant the difference in sentences?
  • Correspondence Principle - Is it fair to convict someone if they did not foresee the actus reus?
  • Wounding and GBH - these are too disparate. Historically, a puncture could be serious, but nowadays one is far more serious. Perhaps it deters knife crime?
  • Inflict/cause - it is considered now that both mean 'cause', but it has given rise to ambiguity.
  • Archaic Language - meanings might have been stretched to secure conviction. It can be unclear.
  • Need for assault under s 47 - why does an ABH conviction require an assault?
    • Gardner, 'Rationality and the Rule of Law in Offences Against the Person (1994): there is no 'ladder of offences' in the Act, but perhaps it was not drafted with that intention. 

    It is strange the s 18 is broader than s 20. The use of 'inflict' in s 20 suggests violent force so why is it missing from s 18? Gardner argues that there is moral significance as 'cause' encompasses manipulation, coercion, trickery, being left to die etc.
    ]]>     2017-02-12 23:07:52 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/153312947     Seminar Questions sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/153398475
    1. One Sunday afternoon, David, his friend Chris and Chris’s girlfriend Nikki decide to go camping in the countryside. On the train there, they meet Jason. Although the group have never met Jason before, he and David seem to hit it off and so David invites Jason to join them. 
    When evening falls, David invites Jason to share his tent. After consuming a large quantity of alcohol, Jason and David have unprotected sexual intercourse. David fails to tell Jason that he is HIV positive. Meanwhile, Chris and Nikki decide to spend the night in a nearby hay barn. Nikki finds an old branding iron and asks Chris if he would like her to brand her date of birth onto his back. He agrees and she brands him. After this, with Nikki’s consent, Chris carefully inserts some sterilised needles that he has brought with him through each of Nikki’s nipples. Both find this sexually stimulating.
    Discuss any potential criminal liability arising.

    David v Jason
    • If Jason contract HIV, David may be liable for transmitting HIV.
    • If Jason consented to unprotected sex but was unaware of the HIV risk David could be liable under s 20. Presumably he meets the requirements of the Actus Reus; that he unlawfully inflicted GBH upon Jason, and the Mens Rea; that he foresaw that the victim could suffer harm. 
    • Alcohol? Still foreseeable and reckless?
    Nicki v Chris
    • Branding: if it can be proved that Chris consented, this should be permitted following the principle in R v Wilson which regards the branding as analgous to tattooing. It is one defence that can be used for GBH.
    • The sterilised needles will also come under defences as outlined by Lord Mustill in R v Brown.

    2. The Sexual Offences Act 2003 presents an unsatisfactory and incoherent definition of consent. Key decisions regarding the absence of consent are at the mercy of jury discretion and prejudice. Further legislative reform is needed. 
    Critically discuss
    ]]>     2017-02-13 12:44:20 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/153398475     sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/153472324 Emmett - more extreme]]> 2017-02-13 16:09:15 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/153472324 sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/153474795 Possible rape - no indication of consent. SOA 2003, s 1 for definition of rape. Drunk. How do we know who penetrated whom? Could Jason also be liable? Bree on drunken consent, can still be conscious and not have the capacity. No objective point between  

    aer sneM .cte on yas tndid ,evisnopser :tnesnoc ni feileb elbanosaer a dah eh taht yas dluoc divaD .yticapacni dna yticapac


    ]]>     2017-02-13 16:15:02 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/153474795     David sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/153476729 S 20 satisfied. Consent to known, real risk as in Konzani. Wait article for critical commentary. No direct question asked in Knozani about whether you could consent to HIV. Brown doesn't allow you to consent to s 47 and beyond. ]]> 2017-02-13 16:19:53 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/153476729 Nicki and Chris sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/153478030 Nicki offers, whereas The victim in Wilson asked to be branded. Explore this. This couple are not married. It could distinguish from Wilson. Should Wilson have been protected - potential domestic violence? Would this be seen differently in a less patriarchal worldview.

    S47- sterilisation is relevant and should be considered. R v Brown and piercings. Mimics the behaviour you could have done in a shop. But it's not in a controlled environment.  Level of expertise of piercer.  But if something is for sexual pleasure would it be acceptable under Brown? DRAW OUT DIFFERENCES
    R v Lock and R v Blakemore. Champagne poured into whipping wounds. Accepted even though charged with ABH. But R v Brown says you can't consent to ABH and above., but Brown is still good law even though not all cases seem to be following it. Why did the CPS not challenge these rulings? Could go through whole problem question but still at the end mention that Brown is still the good law.

    ]]>     2017-02-13 16:23:27 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/153478030     Consent sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/153486398 Choice - it isn't in the act. 
    Freedom - not defined.
    Capacity - not defined. 
    Therefore, consent requires more dfinition. 
    S 74 conclusive presumptions.
    S 75 rebuttal presumptions. 
    Yes doesn't mean consent. Context is so relevant to freedom and choice. Law is unsatisfactory but the
    ?ecneereffidbyna eb emoctuo eht lliW ?egnahc rof moor

    How does the jury interpret? Jury direction - defining certain terms. Because the definition is vague there is no easy way to ensure.

    Reasonable belief is also vague. Jury will apply every day context. People will interpret signals and sometimes people will get them wrong. 

    Rape myths need to be stamped out but some aren't myths. 

    There is unsatisfactory vagueness. Is that without good cause?  Education is more important that legislation. 

    Rape trials will never be perfect. Man could have genuinely believed in consent.


    ]]>     2017-02-13 16:44:31 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/153486398     SEXUAL OFFENCES sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/170551083 2017-05-08 16:01:18 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/170551083 SEXUAL OFFENCES ACT 2003 sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/170552172 RAPE s 1 SOA
    Actus Reus
    • Penetration with penis
      • S 79 defined penetration as continuing act, so if a woman changes her mind he must withdraw (AR continuous and changing MR)
    Mens Rea
    • No consent to penetration
    • No reasonable belief in consent
    Marital rape: R v R [1991]

    ASSAULT BY PENETRATION s 2 SOA
    Can be committed by a man or a woman as it changes penis to 'an object'. Mouth not included. Used where there is insufficient evidence for rape.

    SEXUAL ASSAULT s 3 SOA
    Replaces indecent assault. Touching rather than penetrating. Clarified in s 79.
    Includes touching through clothes R v H [2005].
    ]]>     2017-05-08 16:04:56 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/170552172     ASSAULT S 39 Criminal Justice Act 1988 sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/170557289 2017-05-08 16:22:03 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/170557289 ACTUS REUS sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/170557365
  • Causing the victim to apprehend imminent unlawful force.

    • MENS REA
    • Intention or recklessness to cause victim to apprehend unlawful force. 
    • This includes direct and Woollin indirect intention.
    Recklessness includes Cunningham recklessness.
    ]]>     2017-05-08 16:22:18 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/170557365     sxh1006 https://padlet.com/sxh1006/g09uya9n5x32/wish/170687836 Reece - more of a problem with gender myth than rape myths. Coffee scenario is used to deduce context and culpability because the whole area is grey, nuanced and context specific.

    Weait - Konzani imposes responsibility on infected by not those who choose to take risks. Is the scope too wide. Areas of uncertainty regarding condoms ]]>     2017-05-09 07:48:53 UTC https://padlet.com/sxh1006/g09uya9n5x32/wish/170687836