Rape, Sexual Assaults and the Problems of Consent

Criminal Law Review

Volumn , Issue MAY, 2004, Pages 328-346

  Temkin, Jennifer ^a   Ashworth, Andrew ^b  

^a UNIVERSITY OF SUSSEX   (United Kingdom)

^b UNIVERSITY OF OXFORD   (United Kingdom)

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[No Author keywords available]

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EID: 2442647513     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (124)

1. The article is based on papers presented by the authors at the International Association of Penal Law's conference on "Sexual Offences" in November 2003. We are indebted to those who attended for their comments.
2. Home Office, Setting the Boundaries: Reforming the Law on Sex Offences, Vol. 1 (chair: Betty Moxon), Home Office (2000), hereinafter referred to as "the Report"; see N. Lacey, "Beset by Boundaries: the Home Office Review of Sex Offences" [2001] Crim.L.R. 3 and P. Rumney, "The Review of Sex Offences and Rape Law" (2001) 64 M.L.R. 890.
3. Home Office, Setting the Boundaries: Reforming the Law on Sex Offences, Vol. 1 (chair: Betty Moxon), Home Office (2000), hereinafter referred to as "the Report"; see N. Lacey, "Beset by Boundaries: the Home Office Review of Sex Offences" [2001] Crim.L.R. 3 and P. Rumney, "The Review of Sex Offences and Rape Law" (2001) 64 M.L.R. 890.
4. Home Office, Setting the Boundaries: Reforming the Law on Sex Offences, Vol. 1 (chair: Betty Moxon), Home Office (2000), hereinafter referred to as "the Report"; see N. Lacey, "Beset by Boundaries: the Home Office Review of Sex Offences" [2001] Crim.L.R. 3 and P. Rumney, "The Review of Sex Offences and Rape Law" (2001) 64 M.L.R. 890.
5. Home Office, Protecting the Public (Cm.5668, 2002).
6. It was also the subject of a scrutiny and report by the House of Commons Home Affairs Committee: see Home Affairs Committee, Sexual Offences Bill (Fifth Report of Session 2002-03, HC 639, 2003); see also The Government Reply to the Fifth Report from the Home Affairs Committee Session 2002-2003 HC639: Sexual Offences Bill (Cm. 5986, 2003).
7. It was also the subject of a scrutiny and report by the House of Commons Home Affairs Committee: see Home Affairs Committee, Sexual Offences Bill (Fifth Report of Session 2002-03, HC 639, 2003); see also The Government Reply to the Fifth Report from the Home Affairs Committee Session 2002-2003 HC639: Sexual Offences Bill (Cm. 5986, 2003).
8. Protecting the Public, para.4
9. ibid., para.5.
10. Lord Falconer, House of Lords Deb., Vol.644, col.772, February 13, 2003.
11. ibid. See also, Protecting the Public, para.10.
12. Lord Falconer, House of Lords Deb., Vol.644, col.771, February 13, 2003.
13. ibid. s.79.
14. Report, para.2.8.5. In Ragusa (1993) 14 Cr.App.R.(S.) 118, the Court of Appeal in effect upheld a sentence of 10 years' imprisonment for indecent assault by means of forced oral sex, in a particularly bad case.
15. Home Affairs Committee (above, n.4), paras 10-14.
16. Report, paras 2.12.5-6.
17. s.2(4). For draft sentencing guidelines on this and other offences, see the Consultation Paper at www.sentencing-guidelines.gov.uk.
18. e.g. Townsend (1995) 16 Cr.App.R.(S.) 553; Osman [2000] 2 Cr.App.R.(S.) 112.
19. para.2.20.
20. para.2.20.1
21. e.g. Cogan and Leak [1976] Q.B. 217; DPP v K and B [1997] 1 Cr.App.R. 36.
22. ibid. s.8.
23. [1989] A.C. 28.
24. Compare Lord Ackner in Court [1989] A.C. 28 at 44, on inherent indecency. Section 73 of the Act (which applies to offences against children) only provides an exemption for secondary parties with clinically justifiable motives, not principals.
25. This reflects the decision in George [1956] Crim.L.R 52.
26. See Andrew Ashworth, Principles of Criminal Law (4th ed., 2003), p.354.
27. See Jennifer Temkin, Rape and the Legal Process (Oxford University Press, 2002), p.161.
28. For a detailed discussion of consent in sexual offences, see ibid., pp.90-116, 166-177.
29. Report (above, n.2).
30. See Jennifer Temkin, "Literature Review: Rape and Sexual Assault" in Setting the Boundaries: Reforming the Law on Sex Offences, Vol.2 Supporting Evidence, App.D1, Home Office (2000). See also The Law Commission, Consent in Sex Offences - A Policy Paper (2000), App.C.
31. See Jennifer Temkin, "Literature Review: Rape and Sexual Assault" in Setting the Boundaries: Reforming the Law on Sex Offences, Vol.2 Supporting Evidence, App.D1, Home Office (2000). See also The Law Commission, Consent in Sex Offences - A Policy Paper (2000), App.C.
32. [1981] 3 All E.R. 1382.
33. Report, para.2.10.2.
34. e.g. Canadian Criminal Code, s.273.1; The Crimes (Rape) Act 1991, s.36, Victoria, Australia.
35. Report, para.2.10.5.
36. ibid., para.2.10.6.
37. i b i d.
38. See Protecting the Public, para.16.
39. See Temkin (2002), pp.94-95.
40. Report, para.2.10.9.
41. i b i d.
42. Above, n.2.
43. Protecting the Public, para.30.
44. para.32.
45. But for the "internal" approach in the case of impersonation, see discussion below.
46. Protecting the Public, para.32.
47. [2002] 2 A.C. 545.
48. The Report did not discuss the issue of burden of proof, but in relation to the idea of judges' directions it said: "we did not want to establish any presumption of lack of consent" (para.2.11.4).
49. For discussion, see the Home Affairs Committee (above, n.4), para.29.
50. This reflects the common law, see Flattery (1877) 2 Q.B.D. 410 and Williams [1923] 1 K.B. 340.
51. This reflects the common law, see Flattery (1877) 2 Q.B.D. 410 and Williams [1923] 1 K.B. 340.
52. This provision ensures that there is liability where D, for example, deceives C into thinking that a vaginal examination is required for medical reasons. See also Tabassum [2000] Crim.L.R. 686.
53. s.76(2). For a case of partner impersonation, see Elbekkay [1995] Crim.L.R. 163.
54. This possibility was clearly not appreciated by the Solicitor General who appears to have considered that such argument was precluded simply because the presumptions in s.76 were conclusive: House of Commons Standing Committee B, col.60, October 15, 2003.
55. See discussion below, pp. 337-340.
56. This provision reflects the common law but introduces an immediacy requirement.
57. This provision clarifies the common law regarding fear of violence to third parties.
58. This provision clarifies the common law and reflects the recommendation of the Law Commission: see Law Commission, Consultation Paper No. 139, Consent in the Criminal Law (HMSO, 1995), para.6.36 and the law in several Australian states: see Temkin (2002), p. 107.
59. This provision clarifies the common law and reflects the recommendation of the Law Commission: see Law Commission, Consultation Paper No. 139, Consent in the Criminal Law (HMSO, 1995), para.6.36 and the law in several Australian states: see Temkin (2002), p. 107.
60. At common law consent was conclusively presumed where sexual intercourse took place in these circumstances: see discussion below.
61. This clarifies existing law and reflects increasing concern about the sexual abuse of those with disabilities: see on this, e.g. Speaking Up for Justice (Home Office, 1998).
62. This circumstance did not feature in the original Bill but was added by the government at a later stage after it accepted a suggestion made by Lord Lucas during debate. It was intended to deal with "drug rape": see Beverley Hughes, House of Commons Standing Committee B, col.053, October 14, 2003.
63. See, further, Pt 8 below.
64. J.L. Austin, "A Plea for Excuses", in H. Morris (ed.), Freedom and Responsibility (1961), at p.8.
65. para.2.11.5.
66. This is intended to include alcohol: see Beverley Hughes, House of Commons Standing Committee B col.054, October 14, 2003.
67. For further discussion, see Emily Finch and Vanessa E. Munro, "Intoxicated Consent and the Boundaries of Drug-assisted Rape" [2003] Crim.L.R. 773.
68. House of Commons Standing Committee B, col.26, October 15, 2003.
69. Mayers (1872) 12 Cox C.C. 311.
70. Law Commission (2000), (above, n.27), paras.2.5-2.12.
71. See discussion in Temkin (2002), pp.98-99.
72. para.2.10.9.
73. See Literature Review (above, n.27), p.87. In Canada, the list which was originally exhaustive is now non-exhaustive: for further discussion see Temkin (2002), p.174.
74. Report, para.2.10.7.
75. Beverley Hughes, House of Commons Standing Committee B, col.26, October 15, 2003.
76. See The Government Reply to the Fifth Report (above, n.4), para.5.
77. See Report, para.2.10.9; Protecting the Public, para.31.
78. Beverley Hughes, House of Commons Standing Committee B, col.053, October 14, 2003.
79. See discussion, above, p.336.
80. Amendments were unsuccessfully tabled by Baroness Noakes and Lord Astor to remove this requirement.
81. para.2.10.9.
82. Canadian Criminal Code, s.273.1(2).
83. cl.78(5).
84. Home Affairs Committee (above, n.4), para.33.
85. para.2.10.9.
86. This includes situations where D has deliberately plied C with drink in order to have sexual intercourse with her.
87. DPP v Morgan [1976] A.C. 182.
88. The words of Lord Hailsham, ibid., p.214.
89. Cf. the decisions in B v DPP [2000] 2 A.C. 428 and in K [2002] 1 Cr.App.R. 121, which strongly favoured proof of mens rea as to age over the previous strict liability interpretation of statutory sexual offences against children under a specified age.
90. Home Affairs Committee (above, n.4), para.23.
91. 34 F.302, 309 (C.C.E.D.N.Y. 1888) quoted by Victoria Nourse in "The 'Normal' Successes and Failures of Feminism and the Criminal Law" (2000) 75 Chi-Kent L.Rev. 951, n.92.
92. Government Reply to the Fifth Report (above, n.4), para.3.
93. Sexual Offences Bill [Lords], House of Commons Standing Committee B, col.21, September 9, 2003.
94. cf. the courts' approaches to this question in other areas of the criminal law, in Bowen [1996] 2 Cr.App.R. 157 and Morgan Smith [2001] 1 A.C. 146.
95. (1991) 83 D.L.R. (4th) 193 at 228.
96. para.32.
97. para.34.
98. Sexual Offences Bill [Lords], House of Commons Standing Committee B, col.21, September 9, 2003.
99. s.1(2).
100. Eleventh Report, Evidence (General) (Cmnd 4991, 1972), para. 140; for further analysis, see I.H. Dennis, The Law of Evidence (2nd ed., 2002), pp.374-390.
101. Eleventh Report, Evidence (General) (Cmnd 4991, 1972), para. 140; for further analysis, see I.H. Dennis, The Law of Evidence (2nd ed., 2002), pp.374-390.
102. ibid., para.140(i).
103. e.g. Salabiaku v France (1988) 13 E.H.R.R. 379.
104. [2002] 2 A.C. 545.
105. [2003] UKHL 28 at [49]; see [2004] Crim.L.R. 244.
106. [2003] UKHL 28 at [49]; see [2004] Crim.L.R. 244.
107. Cf. Protecting the Public, para.32, which proposed a persuasive burden on the defence.
108. The complexity of the original formulation is mentioned above, p.340, and discussed by the Home Affairs Committee (above, n.4), at paras 18-23.
109. Sexual Offences Bill cl.78(2) as introduced in the House of Lords on January 28, 2003.
110. Quoted and slightly amended by the Home Affairs Committee (above, n.4), para.29.
111. The words of Hilary Benn, then Home Office Minister, quoted by the Home Affairs Committee (above, n.4), at para.30.
112. [1995] Q.B. 250.
113. See Temkin (2002), p.106, for proposals on this issue.
114. Compare Tabassum [2000] Crim.L.R. 686 (no true consent) with Richardson [1998] 2 Cr.App.R. 200 (effective consent).
115. A rough parallel with the (controversial) principle in Metropolitan Police Commissioner v Charles [1977] A.C. 177 that there is a deception if D knows that C would not have acted as she did, if she had known the true facts. This might apply if D concealed the fact that he was HIV positive and the issue was not mentioned before C agreed to sex.
116. McCoy [1953] 2 S.A. 4.
117. cf. Wellard (1978) 67 Cr.App.R. 364 at 368.
118. S. Gardner, "Appreciating Olugboja" (1996) 16 L.S. 275 at p.287.
119. ss.2 and 3, respectively, of the Sexual Offences Act 1956.
120. Report, para.2.18.7.
121. See ss.34-37. For the definition of mental disorder, see s.79(6). For reasons of space this article does not deal with ss.30-44 which cover sexual acts with the mentally disordered.
122. See Victoria Nourse (above, n.85), p.962.
123. [1994] 1 A.C. 212; see N. Bamforth, "Sado-masochism and consent" [1994] Crim.L.R. 661.
124. [1994] 1 A.C. 212; see N. Bamforth, "Sado-masochism and consent" [1994] Crim.L.R. 661.