Essay Plan: "The Sexual Offences Act 2003 has failed to improve the way the courts deal with issues of consent in sex offences. Discuss."

Paragraph 1: Section 76

• Focus: Examine Section 1 of the Sexual Offences Act 2003 and whether Section 76 has improved the legal handling of consent.

◦ Assange v Swedish Prosecution Authority: How the case supports the improvement of consent laws.

◦ R v Lawrence: Contrasting view—arguing Section 76 has created more problems than it has solved.

• Focus: Analyse how intoxication impacts consent under the Sexual Offences Act 2003.

◦ R v Bree and R v Hysa: Judicial approach to intoxication and consent.

◦ R v B and R v Kirk: Additional case law examples.

◦ Theoretical Perspectives: Kessler Ferzan and Westen's critiques on the law’s handling of intoxicated consent.

Paragraph 3: Deception Regarding Nature or Purpose of the Act

• Focus: Discuss the effectiveness of the law in cases involving deception about the nature or purpose of the sexual act.

◦ R v Jheeta (2007): Defendant's use of deception and its treatment under Section 76.

◦ R v Devonald (2008): Departure from Jheeta and the broader interpretation of "purpose."

◦ R v Bingham (2013): Highlighting inconsistency and confusion in applying Section 76.

◦ Analysis:

▪ The ambiguity in distinguishing between deception about "situation" vs. "purpose."

▪ Jonathan Herring’s view: Deception must be about identity, not attribute, but ambiguity remains (e.g., ethnicity as identity vs. attribute).

◦ Conclusion: Section 76 has not clarified the law and has created more issues than it resolved.

Paragraph 4: Cases of Impersonation

• Focus: How the courts handle impersonation in consent cases.

◦ R v McNally vs. R v Monica: Comparison of impersonation cases.

◦ Herring's Perspective: Further analysis of identity vs. attribute in these cases and the implications for the clarity of the law.

• Conclusion: Impersonation cases reveal further inconsistencies and lack of improvement in the legal approach to consent.

Conclusion

• Summarise the failures of the Sexual Offences Act 2003 in improving the handling of consent issues.

• Reiterate how Sections 76, intoxication laws, and cases of impersonation have led to confusion and inconsistency in legal outcomes.

• Suggest possible reforms or alternative approaches to enhance the clarity and fairness of consent laws.

Sample Paragraph:

The sexual offences act has introduced s.76 to conclusively presume the existence of consent. Regarding cases of intentional deception, this section replaced that the deception has to be pertaining to the ‘nature or quality’ to ‘nature or purpose’ of the act. We will discuss whether this has improved or failed the law on sexual offences. The Jheeta 2007 case is a good place to start. This involved the defendant and victim who were in a sexual relationship but had broken up. The defendant pretended to be a police officer and demanded that the victim have sex with him, threatening a fine if she refused. This wasn’t held to vitiate consent under s.76 because there wasn’t a deception as to the nature or purpose of sexual intercourse. It was the situation that the victim was deceived by. However, the defendant was still charged with rape under s.74. The inconsistent application of s.76 can be understood through the trail of cases post-Jheeta. In the Devonald 2008 case, the defendant (father of the girl who was dating the victim) pretended to be a twenty year old girl online and encouraged the victim to masturbate on camera to humiliate him. The defendant was held guilty which is significant because they applied s.76, which means that they departed with Jheeta. The understanding of nature or purpose was given a wide meaning. Although there was no deception as to the nature of the act, they held there was deception as to the purpose. The line between purpose in Devonald and situation in Jheeta is indistinguishable. There is a strong argument to make that the victim in Devonald was not deceived by the purpose of the act but rather the situation. The following case of R v Bingham 2013 emphasises the inconsistency and how there has been no material improvement in the law and it has in fact caused more problems. In Bingham, the defendant pretended to be another man and told his girlfriend (victim) that if she didn’t perform sexual acts online he would email photos of her to her employees. S.76 did not apply which marked a return to Jheeta. However, s.74 did apply and the defendant was convicted. The purpose of s.76 in regards to intentional acts of deception is unclear and the law has created even more problems. There has been some clarity in that deception of a peripheral matter does not amount to deception of purpose. However, where do we draw the line between peripheral and significant, it is often very fine? Jonathan Herring states that the deception has to be over identity, not attribute. However, what amounts to an attribute, would something like ethnicity be recognised as identity or attribute? These points highlight the confusion of the current law and how it has ‘failed to improve’.