When Misconduct in Public Office is Really a Sexual Offence

Misconduct in Public Office (MiPO) covers a wide and varied range of conduct. Beyond the defendant’s public office, there is no unifying conduct or result. A conviction for MiPO could represent putting pressure on a council official to move the route of a proposed road, or a police officer abusing his/her position for sexual gain. Sexual misconduct prosecuted as MiPO falls outside the usual regime for prosecuting and sentencing sexual offences, both obscuring the conduct by the label of MiPO and avoiding sexual offence specific consequences. To examine what kind of sexual offending MiPO has been covering, we analysed newspaper reports and appellate decisions since 2002. This enabled us to identify the conduct MiPO was being used to cover at charge, plea and conviction (or acquittal) stages. We found a significant amount of sexual misconduct being prosecuted as MiPO. We then analysed the sexual conduct to determine the “wrongs” involved, identifying particular categories. This enabled us to propose a new sexual offence (based on the Sexual Offences Act 2003 offences that are not founded on lack of consent), which marks the sexual wrong and enables a focus on the defendant’s abuse of position rather than the victim’s vulnerability. This article outlines the basis for our proposal to the Law Commission for reform of the common law offence of MiPO (as our second response to their consultations). Currently at the stage of Policy Development, the Commission aims to publish its report later this year.

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Ignorance of the Law as a Defence to Rape: The Destruction of a Maxim

The Journal of Criminal Law ◽

10.1350/jcla.2012.76.4.784 ◽

2012 ◽

Vol 76 (4) ◽

pp. 336-347

Author(s):

Kenneth J. Arenson

Keyword(s):

Common Law ◽

Mens Rea ◽

Sexual Offences ◽

The Poor ◽

House Of Lords ◽

Long Line ◽

The Common ◽

The Law ◽

Sexual Offences Act 2003 ◽

Court Of Appeal

In DPP v Morgan, the House of Lords correctly concluded that an accused who entertained a genuine belief that a woman was consenting to carnal knowledge of her person could not be convicted of the common law crime of rape as such a belief and the requisite mens rea to convict were mutually exclusive of one another. Though England and Wales have resiled from this position by virtue of the Sexual Offences Act 2003, s. 1(b), which allows for conviction upon proof that the accused did not reasonably believe that the complainant was consenting, the Morgan principle has retained its vitality at common law as well as under the various statutory crimes of rape that exist throughout Australia, most notably the provisions of s. 38 of the Crimes Act 1958 (Vic). Despite a long line of Victorian Court of Appeal decisions which have reaffirmed the Morgan principle, the court has construed s. 37AA(b)(ii) of the Act as leaving open the possibility of an acquittal despite the fact that the accused acted with an awareness that one or more factors that are statutorily deemed as negating consent under s. 36(a)–(g) of the Act were operating at the time of his or her sexual penetration; specifically, the court held that the foregoing factors do not necessarily preclude a jury from finding that the accused acted in the genuine belief that the complainant was consenting. This article endeavours to explain how the accused could be aware of such circumstances at the time of penetration, yet still entertain such a belief. The article ultimately concludes that such an anomaly can only be explained through a combination of the poor drafting of s. 37AA(b)(ii) and the court's apparent refusal to follow the longstanding precept that ignorance of the law is never a defence to a crime, ostensibly prompted by its adherence to the cardinal precept that legislation is not to be construed as superfluous.

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Child Protection through the Criminal Law

A History of Scottish Child Protection Law ◽

10.3366/edinburgh/9781474444170.003.0004 ◽

2020 ◽

pp. 85-114

Author(s):

Kenneth McK. Norrie

Keyword(s):

Corporal Punishment ◽

Criminal Law ◽

Child Protection ◽

Adult Population ◽

Common Law ◽

Legal Basis ◽

Sexual Offences ◽

The Common ◽

The Law ◽

A Charge

The earliest criminal law dealing with children differently from the adult population was that concerned with sexual offences. This chapter explores the changing policies of the law, from the late 19th century fear of girls being exposed to immorality and boys being exposed to homosexuality, through the more protective 20th century legislation which nevertheless hung on to old ideas of immorality and criminality, until the Sexual Offences (Scotland) Act 2009 focused almost (but not quite) exclusively on protection from harm and from exploitation. The chapter then turns to the crime of child cruelty or neglect from its earliest manifestation in the common law to its statutory formulation in Prevention of Cruelty to, and Protection of, Children Act 1889, which, re-enacted in 1937, took on a form that, for all intents and purposes, remains to this day. The last part of the chapter explores the legal basis for the power of corporal punishment – the defence previously available to parents, teachers and some others to a charge of assault of a child, known as “reasonable” chastisement. Its gradual abolition from the 1980s to 2019 is described.

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Public Perception of Sexual Offence: A Comparison

Inquiry@Queen's Undergraduate Research Conference Proceedings ◽

10.24908/iqurcp.8583 ◽

2018 ◽

Author(s):

Cody Sebben

Keyword(s):

Data Collection ◽

Sexual Offenders ◽

Public Safety ◽

Public Perception ◽

Sexual Offending ◽

Personal Injury ◽

Sexual Offence ◽

Complete Understanding ◽

Sexual Offences ◽

Specific Factors

Studies show that, given the opportunity, most people would punish perpetrators of sexual assault more severely than those who commit other personal injury offences (Roberts, 1990). This study will attempt to explain why most people would prescribe harsher punishment to sexual offenders. Participants will take part in answering one of two questionnaires for the purpose of data collection, each with control variables. It is hypothesized that specific factors play a role in the belief that sexual offenders are a greater threat to individual and public safety than other offenders. These hypothesized factors include: risk to individual and public safety, lack of understanding with regard to sexual offences, belief that the offender has a greater likelihood to reoffend than non sexual offenders, and perception that treatment for sexual offending is not effective. Results from the study are anticipated to help explain why sexual offences are often thought to be more deserving of punishment than most other offences. It is anticipated that results will assist in providing a more complete understanding of sexual offences, both in public perception and in treatment.

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11. Sexual offences

Complete Criminal Law ◽

10.1093/he/9780198848462.003.0011 ◽

2020 ◽

pp. 515-555

Author(s):

Janet Loveless ◽

Mischa Allen ◽

Caroline Derry

Keyword(s):

Great Britain ◽

Social Context ◽

Mens Rea ◽

Court Decisions ◽

Sexual Offence ◽

Marital Rape ◽

Sexual Offences ◽

The Social ◽

Actus Reus ◽

Sexual Offences Act 2003

This chapter examines the types of sexual offence in Great Britain contained in the Sexual Offences Act 2003. These include rape, assault by penetration, sexual assault, and causing sexual activity without consent. The chapter discusses the key elements of these offences, analyses the social context of rape, and investigates the reasons behind the low conviction rates for rape cases. It explains the principle of the rape theory and the actus reus and mens rea elements of sexual offences, considers marital rape, and also provides examples of several relevant cases and analyses the bases of court decisions in each of them.

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Preventative Services for Sexual Offenders

Sexual Abuse ◽

10.1177/1079063216630749 ◽

2016 ◽

Vol 30 (1) ◽

pp. 63-81 ◽

Cited By ~ 13

Author(s):

Lyne Piché ◽

Jeffrey Mathesius ◽

Patrick Lussier ◽

Anton Schweighofer

Keyword(s):

Primary Prevention ◽

Sexual Offenders ◽

Group Treatment ◽

Sexual Offending ◽

Sexual Offence ◽

Sexual Offences ◽

The Past ◽

Preventative Interventions ◽

Preventative Services

The role of primary prevention of sexual offences is an understudied area. The current study examined a sample ( N = 100) of men charged or convicted of a sexual offence to determine their interest in interventions that could be offered prior to offending, reasons for not seeking out interventions in the past, and demographic information including onset of deviant sexual fantasy and interests. The majority indicated that preventative interventions, including individual and group treatment, would have been beneficial, but inaccessibility of interventions and fear of arrest prevented them from seeking services. The findings suggest that men who progress to committing a sexual offence are interested in preventative interventions but require information regarding availability of accessible support and the development of primary prevention structures to fulfill society’s desire to prevent sexual offending.

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The Act of Settlement and the Employment of Aliens

Federal Law Review ◽

10.1177/0067205x8101200302 ◽

1981 ◽

Vol 12 (3) ◽

pp. 212-235

Author(s):

Keven Booker ◽

George Winterton

Keyword(s):

Common Law ◽

The State ◽

Public Office ◽

The Common

Following recent disagreement between the Commonwealth and Victorian Solicitors-General over whether the States have power to employ aliens in public offices in view of section 3 clause 5 of the Act of Settlement 1701 (U.K.), this Article considers whether that clause applies in the States and, if it does, whether they or the Commonwealth can amend or repeal it. These issues are examined in light of the common law on the employment of aliens in public office, the reasons for the enactment of the Act of Settlement, and the question whether, and to what extent, the doctrine of paramount force applies to legislation enacted prior to the establishment of a colony. The Article concludes that section 3 clause 5 did not apply in Australia, either by reception or by paramount force, although the common law on the employment of aliens applied by reception; and the common law did not disqualify naturalized persons from holding public office. The authors argue that in any event, Commonwealth legislation, validly enacted under the “Naturalization and aliens” power (section 51(xix)) has removed any disabilities the Act of Settlement might have imposed on the employment of naturalized persons. Moreover, pursuant to section 51(xxxviii), the Commonwealth could authorize the States, or any of them, to pass legislation repugnant to Imperial legislation extending to the State by paramount force.

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Misconduct in a Public Office—Should it Still Be Prosecuted?

The Journal of Criminal Law ◽

10.1350/jcla.2012.76.2.763 ◽

2012 ◽

Vol 76 (2) ◽

pp. 179-185 ◽

Cited By ~ 2

Author(s):

Simon Parsons

Keyword(s):

Common Law ◽

Material Damage ◽

Public Officials ◽

Public Office ◽

The Common

This article examines the common law crime of misconduct in a public office from its ancient origins, and considers the difficulties in defining the crime. These difficulties arise from the crime being very widely defined as it includes non-feasance, misfeasance, frauds and deceits, malfeasance and oppression. It is unclear whether these are separate categories or if they run into one another. It is also unclear if the crime is a conduct crime or whether material damage is required. It appears that the DPP requires material damage before a prosecution can take place. The article argues that as the elements of the crime are so uncertain, it should no longer be prosecuted especially in view of the availability of alternative statutory offences which could be charged instead of the misconduct crime. These statutory offences have the certainty which the misconduct crime lacks and they thus enable public officials to judge their future conduct.

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MARITAL RAPE: A TALE OF TWO LEGAL SYSTEMS

Obiter ◽

10.17159/obiter.v38i3.11423 ◽

2017 ◽

Vol 38 (3) ◽

Author(s):

Oyebanke Yebisi ◽

Victoria Balogun

Keyword(s):

South Africa ◽

South African ◽

Criminal Law ◽

Common Law ◽

Case Law ◽

Criminal Code ◽

Marital Rape ◽

The South ◽

Sexual Offences ◽

The Common

Marital rape is a form of sexual violence, which is often downplayed due to the common law position that a man cannot rape his wife. While certain jurisdictions have enacted laws criminalising it, other jurisdictions have yet to criminalise it. This paper focuses on the criminal aspects of marital rape and examines the laws regarding marital rape in South Africa and the general rape provisions in Nigeria. While marital rape is punishable under South African criminal law, it is not in Nigeria. In this paper, the provisions of the South African Criminal Law (Sexual Offences and Other Related Matters) Act of 2007, the Criminal Code Act, and the Penal Code Act – Nigeria in relation to rape and marital rape – are analysed. This paper also discusses the South African Sexual Offences Court, sentencing for rape in the selected countries, and relevant case law. It concludes that South Africa (SA) has a generally good framework with respect to rape and marital rape, but the country should work more on the strict application of the laws in place. It also suggests that Nigeria should establish a sexual offences court using the South African model and should amend the Criminal Law to expressly criminalise marital rape.

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