Problem Question: Criminal Law, No. 15
Problem Question
Sammy invites his brother Benny and Gloria, Benny’s girlfriend, out for a drink. After consuming several bottles of wine, they return to Benny’s and Gloria’s house for coffee. Gloriad passes out on the sofa. Benny encourages Sammy to have sex with her, saying ‘Go on: she’s just pretending to be asleep, and you know she’s always fancied you’. Sammy goes ahead, with Benny looking on and applauding. However, before he has penetrated her, Gloria wakes and begins to struggle, at which point Sammy quickly pulls on his clothes and runs out of the house. Gloria makes a complaint to the police who arrest Sammy at his home the following morning. Sammy tells them ‘i would never have done if it I hadn’t been drunk’.
Liability of Sammy
Sammy could potentially be liable for attempted rape under the Sexual Offences Act 2003. Here’s a detailed analysis:
1. Attempted Rape: Under section 1 of the Criminal Attempts Act 1981, an attempt occurs when a person, with the intent to commit an offence, does an act which is more than merely preparatory to the commission of that offence. In this scenario, Sammy, after consuming several bottles of wine, was encouraged by his brother Benny to have sex with Gloria, who was passed out on the sofa. Sammy proceeded to engage in sexual contact with Gloria, attempting to penetrate her. Although penetration did not occur because Gloria woke up and began to struggle, Sammy’s actions went beyond mere preparation and thus constitute an attempt.
◦ Lack of Consent: Under section 1(1)(a) of the Sexual Offences Act 2003, the prosecution must prove that the victim did not consent and that the defendant did not reasonably believe that the victim consented. Gloria was unconscious at the time Sammy initiated sexual contact, so she clearly did not consent.
◦ Reasonable Belief in Consent: The law also considers whether the defendant had a reasonable belief in the victim's consent. Benny’s encouragement might suggest to Sammy that Gloria was pretending to be asleep and would consent, but this belief is unlikely to be deemed reasonable. Under section 75 of the Sexual Offences Act 2003, there are evidential presumptions about consent, such as when the victim was unconscious. Sammy would need to provide strong evidence to rebut this presumption. The case of Ciccarelli (2011) is relevant here, where the court found that the defendant’s belief in consent was not reasonable simply because of previous interactions with the victim.
2. Intoxication: Sammy’s intoxication could be relevant to his ability to form the necessary mens rea (intention) for attempted rape. He told the police, "I would never have done it if I hadn’t been drunk." However, under the law, voluntary intoxication is generally not a defence to crimes of basic intent, which includes sexual offences. In R v Kingston (1994), it was held that even if a defendant is involuntarily intoxicated, as long as they have the necessary mens rea, they can be found guilty.
◦ Objective Standard: The courts would likely assess whether a reasonable person, after consuming several bottles of wine, would lose all capacity to form intent. The case law suggests that intoxication will not typically negate mens rea if the necessary intent was present at the time of the act.
Therefore, given that Sammy attempted to engage in non-consensual sexual activity while Gloria was unconscious and was unable to successfully argue a reasonable belief in consent, coupled with the fact that intoxication is not a defence, he would likely be found liable for attempted rape.
Liability of Benny
Benny’s role in this scenario involves encouraging Sammy to have sex with Gloria. Benny might be liable as an accessory to attempted rape.
1. Aiding and Abetting: Under section 8 of the Accessories and Abettors Act 1861, a person who aids, abets, counsels, or procures the commission of an offence is liable to be tried as a principal offender. By encouraging Sammy to engage in sexual activity with Gloria, Benny is arguably aiding and abetting the attempted rape. His active encouragement, coupled with his applause as Sammy proceeded, clearly shows complicity.
2. Mens Rea: For aiding and abetting, Benny must have intended to assist or encourage the commission of the offence, knowing the essential elements of the offence. Benny knew that Gloria was unconscious and could not consent, yet he encouraged Sammy to proceed, implying he was aware of the potential criminal outcome.
Therefore, Benny could be charged as an accessory to attempted rape, facing similar penalties to those of the principal offender, Sammy.
Sample Paragraphs
This paragraph will discuss the liability of Sammy. The first crime that he may be liable for is attempted rape. Under s.1 of the sexual offences act 2003, to be liable for rape the defendant must fulfil each of the following criteria: D intentionally penetrated V, the victim doesn’t consent and D doesn’t reasonably believe V consents. As this is an inchoate offence, we have to show that the act of rape would have been carried out but for her waking up. As it is evident that the V did not consent, the question we have to discuss is did D reasonably believe that the V would consent. Benny encourages Sammy to engage in sex which may suggest that he may have reasonable belief to think the V would consent. As we may fail to conclusively presume, under s.76, whether D reasonably believed V would consent, s.75 may be more fruitful. The burden of proof shifts to D to provide evidence to presume that D reasonably believed there would have been consent. The case of Ciccarelli was a similar circumstance to this situation, where D had touched the V sexually while the V was asleep. He provided evidence stating that he reasonably believed there was consent because she made sexual advances to him earlier in the day. However, D was convicted because this evidence was not deemed to be sufficient to vitiate consent. Therefore, it is unlikely that the courts will find consent under s.75 or s.76.
Sammy may be able to use the fact that he was intoxicated to possibly vitiate consent. Currently, the law does not allow a defence to crimes of basic intent while intoxicated. However, the courts have not conclusively answered this question. This can be explained through the contradicting judgements of Bree and Hysa 2007. In Bree, it was held that drunken consent is still consent. However, in Hysa, a case which involved a drunk V who was very drunk and got into a car with D and had sex. In this case, the defendant was convicted. Sir Igor Judge, in Bree, said that you cannot devise a ‘grid system’ to determine what level of drunkenness vitiates consent. Therefore, it comes down to the content of the particular case. In relation to this situation, the question is whether ‘several bottles of wine’ is, from the standard of an honest and reasonable person, enough to vitiate consent? Sammy said the next morning that he would not have done this if he was sober. However, the courts tend to be quite stringent against cases of voluntary intoxicated people committing sexual offences for policy reasons. Therefore, as Sammy cannot use the presumptions under s.75 or s.76 to evade consent, and cannot use intoxication as a defence, Sammy will be liable for attempted rape.