Should Mistaken Consent Still Be Consent? In Defence of an Incremental Understanding of Consent in the Sexual Offences Act 2003

2021 ◽  
pp. 002201832199823
Author(s):  
Isabella Glendinning
Keyword(s):  
Recent Case ◽  
Potential Solution ◽  
Sexual Offences ◽  
Sexual Autonomy ◽  
Sexual Offences Act 2003 ◽  
Definition Of ◽  
The Way

The article considers the recent case of R v Lawrance [2020] EWCA Crim 971 and the way in which the courts are deciding to interpret the concept of freedom under s. 74 of the Sexual Offences Act 2003. It is argued that the case shines a light upon the lacuna present in the Act with regards to deception and consent, identified by academics when the Act was promulgated. It is suggested that the definition of consent lacks clarity as courts have struggled in its application. The resulting ‘so closely connected’ test developed in the cases of R (on the application of Monica) v DPP [2018] EWHC 3508 (Admin); [2019] QB 1019 and R v Lawrance [2020] EWCA Crim 971 is not an adequate solution to the problem of deception and consent and potentially muddies the waters further. The article offers a potential solution that might better uphold the ambition of protecting sexual autonomy while adhering to the concept of fair-labelling.

scholarly journals Alcohol-Related Rape Cases: Barristers' Perspectives on the Sexual Offences Act 2003 and its Impact on Practice

2010 ◽  
Vol 74 (6) ◽  
pp. 579-600 ◽  
Author(s):  
Clare Gunby ◽  
Anna Carline ◽  
Caryl Beynon
Keyword(s):  
Qualitative Study ◽  
Alcohol Intoxication ◽  
Sexual Offences ◽  
The Law ◽  
Sexual Offences Act 2003 ◽  
Definition Of

This article discusses the findings of a qualitative study which interviewed 14 barristers about the law-in-action reality of rape cases involving alcohol intoxication. The study aimed to identify how a number of provisions introduced by the Sexual Offences Act 2003 were perceived by barristers, worked in practice and their overall impact in terms of improving the law of rape and specifically, alcohol-involved rape. The article focuses on barristers' opinions relating to the definition of consent as contained in s. 74; the ‘consent presumptions’, with specific emphasis on s. 75(2)(f); the jurors' perceived response to jury directions and definitions; and barristers' opinions on the need for future reforms in this area. It is argued that certain provisions introduced by the 2003 Act are not always utilised in a way that was intended, have been interpreted and applied narrowly and, in a number of instances, fail to assist the jury.

5. Sexual Offences

2016 ◽  
Author(s):  
Mischa Allen
Keyword(s):  
Sexual Offences ◽  
Reasonable Belief ◽  
Questions And Answers ◽  
Sexual Offences Act 2003 ◽  
Definition Of

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, diagram answer plans, suggested answers, and author commentary. This chapter presents sample exam questions on sexual offences and suggested answers. Students should be aware of the key provisions of the Sexual Offences Act 2003, and the presumptions as to consent contained in ss. 75 and 76 of the Sexual Offences Act 2003. The concept of reasonable belief is central to this topic. The Act sought to remedy problems in the old law relating to consent and created a new definition of rape as well as shifting the responsibility for obtaining consent to the defendant in some circumstances.

scholarly journals Greer’s ‘Bad Sex’ and the Future of Consent

2019 ◽  
Vol 24 (3) ◽  
pp. 903-921
Author(s):  
Victoria Brooks
Keyword(s):  
Law Reform ◽  
Third Wave ◽  
Feminist Scholarship ◽  
Sexual Offences ◽  
Transformative Power ◽  
Naomi Wolf ◽  
Sexual Offences Act 2003 ◽  
Definition Of ◽  
Second Wave ◽  
Radical Intervention

AbstractGermaine Greer’s polemic ‘On Rape’ has proved controversial and has served to further divide feminist opinion on the way to move forward from #MeToo in consent reform. Greer’s work, along with other second wave feminists, has been rejected by third wave feminist scholarship for simultaneously minimising the harm caused to victims of sexual violence and claiming that rape is not ‘catastrophic’, with Naomi Wolf being Greer’s most vocal and powerful opponent. Yet, I claim that in maintaining this position in opposition to Greer we are missing the real transformative power of Greer’s revival of second-wave arguments in relation to reforming our laws on consent post #MeToo. The consent framework and the definition of consent under the Sexual Offences Act 2003 has been readily criticised for its vague definition of ‘freedom’ and ‘capacity’ in that such a definition misses the subtler, yet powerful, ways in which victims are coerced and abused—those which are most insidious, since they are embedded within the fabric of our society, and within the ‘tissue’ of heterosex. Greer’s position that rape is ‘bad sex’ may well hold some truth—since bad sex for women has long been accepted as part of life albeit reduced to sufferance and duty. Inevitably, this leads us to the conclusion that there are many more instances of rape than we thought, and many more women suffering, than we thought. This article examines this position and argues for urgent research on women’s sexuality, and radical intervention in the law and academia, in the quest for consent law reform.

5. Sexual Offences

2018 ◽  
Author(s):  
Mischa Allen
Keyword(s):  
Study Skills ◽  
Sexual Offences ◽  
Reasonable Belief ◽  
Questions And Answers ◽  
Sexual Offences Act 2003 ◽  
Definition Of

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, diagram answer plans, suggested answers, author commentary and advice on study skills. This chapter presents sample exam questions on sexual offences and suggested answers. Students should be aware of the key provisions of the Sexual Offences Act 2003, and the presumptions as to consent contained in ss. 75 and 76 of the Sexual Offences Act 2003. The concept of reasonable belief is central to this topic. The Act sought to remedy problems in the old law relating to consent and created a new definition of rape as well as shifting the responsibility for obtaining consent to the defendant in some circumstances.

5. Sexual Offences

2020 ◽  
pp. 80-96
Author(s):  
Mischa Allen
Keyword(s):  
Study Skills ◽  
Sexual Offences ◽  
Reasonable Belief ◽  
Questions And Answers ◽  
Sexual Offences Act 2003 ◽  
Definition Of

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, diagram answer plans, suggested answers, author commentary, and advice on study skills. This chapter presents sample exam questions on sexual offences and suggested answers. Students should be aware of the key provisions of the Sexual Offences Act 2003, and the presumptions as to consent contained in ss 75 and 76 of the Sexual Offences Act 2003. The concept of reasonable belief is central to this topic. The Act sought to remedy problems in the old law relating to consent and created a new definition of rape, as well as shifting the responsibility for obtaining consent to the defendant in some circumstances.

scholarly journals A Sexual Harm? HIV Transmission, ‘Biological’ GBH and Ancillary Sentencing Provisions in England and Wales

2021 ◽  
pp. 002201832199109
Author(s):  
Cameron Giles
Keyword(s):  
Sexually Transmitted Infections ◽  
Hiv Transmission ◽  
Case Law ◽  
Recent Case ◽  
Sexual Offences ◽  
England And Wales ◽  
Sexually Transmitted ◽  
Harm Prevention ◽  
Sexual Offences Act 2003

This article examines the scope and meaning of ‘sexual harm’ within the context of ancillary sentencing orders in England and Wales. It argues that the statutory definition provided in the Sexual Offences Act 2003, recently replicated in the Sentencing Act 2020, does not extend to the transmission of sexually communicable infections and that, subsequently, it is inappropriate for Sexual Harm Prevention Orders to be imposed with the aim of preventing transmissions of sexually transmitted infections (STIs). It suggests that recent case law reinforces this point and that the questions this raises reflect the broader need for further scrutiny of the aims and purposes of sentencing, and criminalisation more generally, in instances of STI transmission.

9. Non-fatal violations of the person

2019 ◽  
pp. 315-378
Author(s):  
Jeremy Horder
Keyword(s):  
Recent Past ◽  
Basic Definition ◽  
Physical Force ◽  
Sexual Offences ◽  
The Law ◽  
Sexual Interference ◽  
Sexual Offences Act 2003 ◽  
Definition Of ◽  
Law Commission ◽  
Successes And Failures

This chapter discusses two main forms of physical violation: the use of physical force, and sexual interference. The first part covers non-fatal physical offences (offences against the person), including the contested question of the limits of consent, and possible reforms of the law. There have been numerous recommendations for reform of this area of the law, including Law Commission proposals in the recent past. The second part is devoted to the law of sexual offences under the Sexual Offences Act 2003, focusing on the main offences and the definition of consent. It concludes with a review of the law’s successes and failures. Arguably, whilst the law’s basic definition of rape is much improved, the 2003 Act falls down in relation to many other problems that it was meant to solve.

A Beastly Provision: Why the Offence of ‘Intercourse with an Animal’ Must Be Butchered

2011 ◽  
Vol 75 (6) ◽  
pp. 528-544
Author(s):  
Imogen Jones
Keyword(s):  
Sexual Offences ◽  
Deviant Behaviour ◽  
Sexual Offences Act 2003 ◽  
The Way

This article examines the offence of ‘Intercourse with an animal’ in s.69 of the Sexual Offences Act 2003. It asks whether s. 69 is compatible with liberal justifications for criminalising such behaviour and questions if the way in which the offence is constructed is defensible. Arguments grounded in the concepts of autonomy, consent and rights are rendered irrelevant when placed against the context of the use of animals by humans more generally. Concurrently, limiting the offence to penile penetration draws an illogical line, excluding harmful and sexually deviant behaviour from the ambit of the offence. Consequently, it is argued that the offence needs to be reconsidered by the legislature in order to achieve a more consistent, principled and rationally defensible approach to interspecies sexual acts.

scholarly journals What is a firm? A reply to Jean-Philippe Robé

2021 ◽  
pp. 1-11
Author(s):  
Simon Deakin ◽  
David Gindis ◽  
Geoffrey M. Hodgson
Keyword(s):  
Theory Of The Firm ◽  
Recent Book ◽  
Everyday Language ◽  
Modern Capitalism ◽  
Legal Foundations ◽  
Common Parlance ◽  
The Law ◽  
Business Entities ◽  
Definition Of ◽  
The Way

Abstract In his recent book on Property, Power and Politics, Jean-Philippe Robé makes a strong case for the need to understand the legal foundations of modern capitalism. He also insists that it is important to distinguish between firms and corporations. We agree. But Robé criticizes our definition of firms in terms of legally recognized capacities on the grounds that it does not take the distinction seriously enough. He argues that firms are not legally recognized as such, as the law only knows corporations. This argument, which is capable of different interpretations, leads to the bizarre result that corporations are not firms. Using etymological and other evidence, we show that firms are treated as legally constituted business entities in both common parlance and legal discourse. The way the law defines firms and corporations, while the product of a discourse which is in many ways distinct from everyday language, has such profound implications for the way firms operate in practice that no institutional theory of the firm worthy of the name can afford to ignore it.

The Place of Interests in Hobbes’s Civil Science

2016 ◽  
Vol 29 (2) ◽  
pp. 105-128
Author(s):  
Elliott Karstadt
Keyword(s):  
The Political ◽  
Crucial Importance ◽  
Political Issue ◽  
Political Ideas ◽  
Form Of Government ◽  
Civil Science ◽  
Definition Of ◽  
The Impact ◽  
The Way

Many scholars argue that Hobbes’s political ideas do not significantly develop between The Elements of Law (1640) and Leviathan (1651). This article seeks to challenge that assumption by studying the way in which Hobbes’s deployment of the vocabulary of ‘interest’ develops over the course of the 1640s. The article begins by showing that the vocabulary is newly important in Leviathan, before attempting a ‘Hobbesian definition’ of what is meant by the term. We end by looking at the impact that the vocabulary has on two key areas of Hobbes’s philosophy: his theory of counsel and his arguments in favour of monarchy as the best form of government. In both areas, Hobbes’s conception of ‘interests’ is shown to be of crucial importance in lending a new understanding of the political issue under consideration.

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