Scribd Logo
Upload

Welcome to Scribd!

  • 30 views

    Cycle 6, Sexual Offences, Indicative Answer - Essay

    Uploaded by

    Roman
    This essay discusses the difficulties surrounding consent in the Sexual Offences Act 2003. It argues that the Act is flawed in requiring that the defendant did not honestly and reasonably believe the victim consented. It should be a crime if the victim simply did not consent. The essay also questions how a defendant could ever reasonably mistake a lack of consent. It concludes that the Act still erodes victim freedom and capacity to consent by allowing the defendant to claim a mistaken belief in consent.

    Copyright:

    © All Rights Reserved

    Cycle 6, Sexual Offences, Indicative Answer - Essay

    Uploaded by

    Roman
    30 views2 pages
    This essay discusses the difficulties surrounding consent in the Sexual Offences Act 2003. It argues that the Act is flawed in requiring that the defendant did not honestly and reasonably believe the victim consented. It should be a crime if the victim simply did not consent. The essay also questions how a defendant could ever reasonably mistake a lack of consent. It concludes that the Act still erodes victim freedom and capacity to consent by allowing the defendant to claim a mistaken belief in consent.

    Original Description:

    criminal law

    Copyright

    © © All Rights Reserved

    Did you find this document useful?

    Is this content inappropriate?

    This essay discusses the difficulties surrounding consent in the Sexual Offences Act 2003. It argues that the Act is flawed in requiring that the defendant did not honestly and reasonably believe the victim consented. It should be a crime if the victim simply did not consent. The essay also questions how a defendant could ever reasonably mistake a lack of consent. It concludes that the Act still erodes victim freedom and capacity to consent by allowing the defendant to claim a mistaken belief in consent.

    Copyright:

    © All Rights Reserved
    30 views2 pages

    Cycle 6, Sexual Offences, Indicative Answer - Essay

    Uploaded by

    Roman
    This essay discusses the difficulties surrounding consent in the Sexual Offences Act 2003. It argues that the Act is flawed in requiring that the defendant did not honestly and reasonably believe the victim consented. It should be a crime if the victim simply did not consent. The essay also questions how a defendant could ever reasonably mistake a lack of consent. It concludes that the Act still erodes victim freedom and capacity to consent by allowing the defendant to claim a mistaken belief in consent.

    Copyright:

    © All Rights Reserved
    You are on page 1of 2

    Cycle 6 essay question indicative answer

    The Sexual Offences Act 2003 raises serious difficulties and confusions
    concerning consent. Discuss with reference to examples and case law.

    This essay discusses rape of adults. If V consents, there is no crime. This is


    whether or not D knew that V consented. (In the unlikely circumstances that D
    wanted to commit rape, but V consented, D might be guilty of attempted rape.)
    For the crime to be made out, two elements must be present (s 1 of the 2003
    Act). First, V does not consent. Second, D does not honestly and reasonably
    believe that V consents. Is this second element necessary? It should be a crime
    simply where V does not consent. After all, in what circumstances could D
    honestly and reasonably believe that V consents when V does not in fact
    consent? Does this not pander to the idea that it is Vs responsibility to
    communicate her non-consent, rather than Ds responsibility to be certain that
    she does consent? Does it not pander to the idea that V can be to blame for
    being raped in not making her lack of consent sufficiently clear? All this
    reinforces the subservient status of the victim who, across all sexual offences, is
    most usually a woman (and only a man can rape).

    Certainly the 2003 Act improves the law: previously D was guilty only if he was
    reckless as to Vs consent, whereas now he can be guilty for behaving
    unreasonably. But to repeat, when could D ever reasonably mistake Vs consent?
    When would V ever say yes but mean no? Perhaps when she is under pressure or
    being exploited or unduly influenced but why should that ever benefit D?
    Instead it should trigger yet further protection of V.

    Behaving unreasonably negligently is a concept familiar to tort law, and


    appropriate in that context. Most people drive cars. Most people need to: to get
    to work, to take the children to school, to do the weekly shopping. But we are all
    human, we all make mistakes, we all have the occasional accident. And tort law
    only holds us liable if we behaved unreasonably. Even reasonably careful people
    have accidents, so tort law allows us a margin of error. How can it ever be
    appropriate to have a margin of error in rape? No man ever needs to put his
    penis inside another person; why should he ever be granted a margin of error in
    doing that? What could possibly be unacceptable about requiring him to ask
    first?

    And yet we are bombarded with images of real men taking sex, without ever a
    discussion about consent. Witness the new James Bond film. He has sex twice.
    The first time is with a widow, the day of her husbands funeral, after she has
    consumed alcohol and been threatened with death, after she has slapped him,
    his response being to smash her property and grab her. The second time is with
    a younger girl he has promised to look after, and is supposed to be protecting
    from death by hiding her away, alone with him, and occurs again just after an
    attempt on her life. And his behaviour is supposed to be heroic?
    Perhaps some men fear that a woman, free of any pressure or exploitation or
    influence, might say yes but secretly mean no, deliberately. Why would a woman
    ever deliberately procure her own rape against her wishes? First, that very
    proposition is a logical paradox (and so factually impossible). Second, if any
    person says yes, if they later claim that they did not consent, that simply raises
    questions of credibility. Their denial of consent might not be believed. The law
    already protects people from this logically paradoxical position.

    s 75 of the 2003 Act makes it rebuttably presumed that V did not consent, and
    that D did not reasonably believe otherwise, including such situations as: V was
    threatened with violence, or unconscious, or had been administered drugs. How
    is this only a rebuttable assumption? For example, how could it ever be
    reasonable to assume an unconscious person consents to sex at the time? How
    could it ever be unacceptable to require D first to wake V up? There are
    conclusive presumptions in s 76, like impersonating someone known to V how
    often do these ever happen? And anyway, even if these sections dont apply, still
    we fall back on the general question of whether V consented: see Assange v
    Swedish Prosecution Authority, so really they dont short-circuit the process
    anyway.

    Consent is defined as the freedom and capacity to make a choice (s 74), capacity
    being the ability to understand the facts and weigh them in the balance: Cooper.
    That seems about right. Yet we erode that freedom, and deny that capacity,
    when we allow D to mistake Vs lack of consent.

    You might also like