SEXUAL OFFENCES
s.(1) Rape
Actus Reus:
(a) A intentionally penetrates the anus, vagina, or mouth of B with his penis
(b) B does not consent to the penetration
Mens Rea:
(a) A intends to penetrate.
(b) A does not reasonably believe that B consents.
Penetration is a continuing act, from entry to withdrawal.
s.(2) Assault by Penetration
Actus Reus:
(a) A intentionally penetrates the vagina or anus of B with a part of his body or
anything else;
(b) The penetration is sexual
(c) B does not consent
Mens Rea:
(a) A intends to penetrate
(b) A does not reasonably believe that B consents
s.(3) Sexual Assault
Actus Reus:
(a) A intentionally touches B;
(b) The touching is sexual
(c) B does not consent to the touching
S79(8): Touching can be with any part of the body, with anything else, or through
anything else, and includes touch amounting to penetration.
R v H: touching of clothes can amount to sexual assault.
Mens Rea:
(a) A intends to touch
(b) A does not reasonably believe that B consents
Heard: Sexual assault is a basic intent crime, and so self-induced intoxication is not
a defence.
s.(4) Causing a Person to Engage in Sexual Activity without Consent
, Actus Reus:
(a) A intentionally causes B to engage in an activity
(b) The activity is sexual
(c) B does not consent to engaging in the activity
Mens Rea:
(a) A intends to cause B to engage in the activity
(b) A does not reasonably believe that B consents
The Definition of Consent
s.74 B consents if he agrees by choice, and has the freedom and capacity to make
that choice.
Olugboja (Consent): Lack of physical resistance (no struggling/screaming) can be
mere submission and does not equal consent.
Doyle (Agrees by Choice): C may stop resisting or “go along with it” and yet not be
consenting if the jury conclude this was acquiescence/submission rather than a
free choice. Reluctant agreement can still be consent; however, mere submission
to something unwanted is not.
Kirk (Freedom): 14 yo C – destitute, homeless, and hungry – had sex with D in
exchange for money for food. Held: C may appear to consent yet lack “freedom” to
choose where extreme vulnerability and circumstances effectively overwhelm real
choice; in such cases a jury can properly find no consent because the apparent
agreement is submission/acquiescence, not a free choice.
Ali (Yasir) (Capacity):
(a) (Intoxication): drunken consent remains consent, but capacity is lost if the
complainant is so intoxicated they are “out of it,” which can occur before
unconsciousness.
(b) (Grooming) Grooming does not automatically negate consent, but it can
undermine the complainant’s capacity to make free decisions and produce
acquiescence/submission rather than real agreement.
(c) (Jury): Consent/capacity is ordinarily for the jury to decide
Bree (Capacity): If intoxication causes the complainant to lose capacity to choose,
there is no consent. Drunken agreement can still be consent if capacity remains;
there is no fixed alcohol threshold, and capacity may be lost before
unconsciousness, so it is a fact question for the jury.
R v C (Capacity): C had serious mental health diagnoses, low IQ: D asked for oral
sex. She was panicky and “just took it,” fearing what might happen. Ratio: Capacity
to choose is act-specific and can be situation-specific; a person may lack capacity
s.(1) Rape
Actus Reus:
(a) A intentionally penetrates the anus, vagina, or mouth of B with his penis
(b) B does not consent to the penetration
Mens Rea:
(a) A intends to penetrate.
(b) A does not reasonably believe that B consents.
Penetration is a continuing act, from entry to withdrawal.
s.(2) Assault by Penetration
Actus Reus:
(a) A intentionally penetrates the vagina or anus of B with a part of his body or
anything else;
(b) The penetration is sexual
(c) B does not consent
Mens Rea:
(a) A intends to penetrate
(b) A does not reasonably believe that B consents
s.(3) Sexual Assault
Actus Reus:
(a) A intentionally touches B;
(b) The touching is sexual
(c) B does not consent to the touching
S79(8): Touching can be with any part of the body, with anything else, or through
anything else, and includes touch amounting to penetration.
R v H: touching of clothes can amount to sexual assault.
Mens Rea:
(a) A intends to touch
(b) A does not reasonably believe that B consents
Heard: Sexual assault is a basic intent crime, and so self-induced intoxication is not
a defence.
s.(4) Causing a Person to Engage in Sexual Activity without Consent
, Actus Reus:
(a) A intentionally causes B to engage in an activity
(b) The activity is sexual
(c) B does not consent to engaging in the activity
Mens Rea:
(a) A intends to cause B to engage in the activity
(b) A does not reasonably believe that B consents
The Definition of Consent
s.74 B consents if he agrees by choice, and has the freedom and capacity to make
that choice.
Olugboja (Consent): Lack of physical resistance (no struggling/screaming) can be
mere submission and does not equal consent.
Doyle (Agrees by Choice): C may stop resisting or “go along with it” and yet not be
consenting if the jury conclude this was acquiescence/submission rather than a
free choice. Reluctant agreement can still be consent; however, mere submission
to something unwanted is not.
Kirk (Freedom): 14 yo C – destitute, homeless, and hungry – had sex with D in
exchange for money for food. Held: C may appear to consent yet lack “freedom” to
choose where extreme vulnerability and circumstances effectively overwhelm real
choice; in such cases a jury can properly find no consent because the apparent
agreement is submission/acquiescence, not a free choice.
Ali (Yasir) (Capacity):
(a) (Intoxication): drunken consent remains consent, but capacity is lost if the
complainant is so intoxicated they are “out of it,” which can occur before
unconsciousness.
(b) (Grooming) Grooming does not automatically negate consent, but it can
undermine the complainant’s capacity to make free decisions and produce
acquiescence/submission rather than real agreement.
(c) (Jury): Consent/capacity is ordinarily for the jury to decide
Bree (Capacity): If intoxication causes the complainant to lose capacity to choose,
there is no consent. Drunken agreement can still be consent if capacity remains;
there is no fixed alcohol threshold, and capacity may be lost before
unconsciousness, so it is a fact question for the jury.
R v C (Capacity): C had serious mental health diagnoses, low IQ: D asked for oral
sex. She was panicky and “just took it,” fearing what might happen. Ratio: Capacity
to choose is act-specific and can be situation-specific; a person may lack capacity
