Non-consensual sexual aggression
2. Discuss whether any offences have been committed by Tom against Susan.
This is a case where Susan claims being a victim of non-consensual sexual aggression after a date with Tom. Both were drunk. A used condom was found indicating that there had been sexual intercourse between the two. According to a “2000 British Crime Survey (BCS)”, it had been revealed that 0.9 per cent of women aged 16 to 59 said having been subject to some form of sexual victimisation (including rape) during the last year. In fact, the aim of the 1998 and 2000 British Crime Surveys was to provide the most accurate-ever estimates of the extent and nature of sexual victimisation in England and Wales. The BCS estimates that 4.9 per cent of women have been raped at least once since age 16 and that 9.7 per cent of women have suffered some form of sexual victimisation since that age. The BCS also revealed that 11 per cent of the rape victims' acquaintance to the perpetrator was that by a date (experienced since the age of 16).
Here, Tom can be liable to many offences. One of them is rape which, an offence punishable by a maximum of life imprisonment. Section one of the Sexual Offences Act 2003 sets out the new definition for rape. A person (D) commits an offence if firstly he intentionally penetrates the vagina, anus or mouth of another person (V) with his penis , secondly, V does not consent to the penetration and thirdly, that D does not reasonably believe that V consents. Tom is not completely certain about whether Susan consented as he admitted that he was drunk. However, we cannot ignore the fact that alcohol does impairs judgment and also lowers inhibition becoming easier for the man to force sex on the girl who is not willing and at the same time ignoring the negative response of the girl. Considering the legal aspect, Susan could not have consented as she was drunk.
The case of the university student is a case which is quite contradictory. It concerns a student who was drunk and a part-time security guard, Mr Dougal who had been asked to escort her to her flat. Two days later, Ms Baird confessed to the university chancellor that something had happened and the police were called in. Mr Dougal claimed that they had consensual sex in the corridor outside the flat and Ms Baird, on the other hand was claiming that she was unconscious and could not consent. Finally, Mr Dougal was not found guilty as the student could not remember giving consent.
In the Larter case, two men were convicted of raping a 14-year-old girl who had been
asleep. She was maybe drunk and remembered nothing. It was appealed on the grounds that she had not resisted their advances, so they could not be convicted of rape. But the appeal failed where the test is whether or not she consented. It was concluded that clearly she did not consent.
Trials for rape mostly depend mainly on the matter of consent by the victim which is sometimes really complex to be determined. This law relating to consent actually illustrates the concern with morality. The law currently states that rape occurs if the victim does not consent, or the perpetrator is ‘reckless as to whether there is consent'. Here, Tom might me proven guilty considering the fact that according to section 74, which states that one is guilty if the complainant had not consented and if he did not reasonably believed that the victim consented and according to section 75 subsection 2, since Susan was asleep and unconscious or too drunk that they could not consent, then the burden of proof shifts upon the defendant who has to show that there was indeed a reasonable belief in consent regarding all the circumstances including any steps he might have taken to ascertain that Susan's consent, if any.
Dr Janet Hall, who examined the Forensic Science Northern Ireland toxicology database, had said: "This research confirms the findings of other studies in the UK, US and Australia – that alcohol is a major contributor to vulnerability to sexual assault in social situations and acquaintance rape." Dr Hall added that "Given the very high levels of alcohol consumption by some alleged victims, the findings also raise the question of what constitutes valid consent to sexual activity. The capacity to give informed consent at these levels of alcohol consumption is very questionable."
DPP v Morgan is the case where the mental element of rape had been considered. In this particular case, Morgan had invited three strangers to have sexual intercourse with his wife. They affirmed having been told by Morgan that she was “kinky” and was likely to struggle to get “turned on”. However, Morgan did deny having said that. All four had sexual intercourse with her, using violence to overcome her resistance. The three strangers claimed that they believed Mrs. Morgan was consenting. But is this enough? Because as we are already aware that it has to be reasonably believed by the defendant about the consent . The trial judge directed the jury that, unless their belief was based on the reasonable grounds, it could not constitute a defence of rape. Until the 2003 Act came into force, a man would normally be acquitted if he could show that he "honestly" believed that consent had been given, even if a woman claimed that she had protested. As for the House of Lords. Similar to the situation in DPP v Morgan, Tom kept in mind what he was told about Susan and did not quite care about confirming the consent with Susan and the question which arises is that why did he bring more alcohol for them to drink and wait for her to fall unconscious? He could be doubted of administering drugs to Susan. Finally, it can be determined that he did actually take a risk and somehow, showed a lack of concern for a woman's bodily integrity.
Tom may have committed an assault of penetration where a person, A, commits an offence if he intentionally penetrates the vagina or anus of another person (B), sexually, with a part of his body or anything else, where B does not consent to the penetration, and A does not reasonably believe that B consents. This new offence carries a maximum life sentence. Under the old law, this would have been referred to as an indecent assault. Here, The penetration must be intentional.
Tom may have also committed a sexual assault which is non-consensual “sexual touching”. It is good to note that age of consent is 16. A commits an offence if he intentionally touches another person (B), sexually, and B does not consent to the touching, and A does not reasonably believe that B consents. The maximum sentence is 10 years on indictment and 6 months summarily. The sexual touching must be proved to be without consent.
Susan discovered bruising around the tops of her arms. This signifies that Tom has committed an offence which is actually called as an assault occasioning actual bodily harm. This offence requires the fact that there should be an assault, which may be either an assault or battery and that the victim has suffered actual bodily harm occasioned by the assault or battery. The mens rea is that the defendant intend or be reckless as to the assault or the battery. The actus reus for battery is where the defendant touched or applied force to the victim and as for the mens rea, the defendant need to have intended or being reckless as to the touching or applying force to the victim. According to the Offences against the Person Charging Standards, relied upon by the Crown Prosecution Service (CPS (1996)), bruising could be included within actual bodily harm. For the offence of assault occasioning actual bodily harm, the actual bodily harm must be occasioned by the battery of the defendant. As per section 47 of offences against the Person Act 1861, this offence is punishable by a maximum five years of imprisonment.
Conclusively, we find that the most fundamental thing is to prove that Susan did not consent. This sexual experience creates fear of venereal diseases like HIV and pregnancy. The Sexual Offences Review (2000) considered the creation of a lesser offence of “date rape”. But the introduction of this offence of date-rape had been rejected , else, Tom would have been guilty for a non-consensual intercourse on a “dater” where his motive is seen to be a sexual one.
Criminal Law, Text,Cases And Materials 3rd edition (Jonathan Herring ).
Understanding Criminal Law ( Sweet and Maxwell)
Rape and legal process ( Temkim Jennifer)
Unlawful Sex , Ofennces, Victims and Offenders in Criminal Law Justice.
University of Ulster (2007, October 22). Alcohol Is Most Common 'Date Rape' Drug.http://www.sciencedaily.com /releases/2007/10/071020113144.htm