Problem Question: Criminal Law, No.5

Problem Question

Basil, a successful lawyer, has been attempting to seduce his secretaries Samantha and Clarrie for years without success. During the annual office party, Basil greets Samantha by embracing her and kissing her on both cheeks. Although Samantha does not like this, she allows him to do it to avoid offending him.

When Basil sees Clarrie, he offers to get her a drink. Clarrie requests something that is not very strong to avoid getting too drunk. Basil suggests the fruit punch, claiming it is just fruit juice with a little white wine, but he knows that it is actually very alcoholic. Throughout the evening, Basil keeps serving Clarrie the punch, and as a result, she becomes very drunk. When Clarrie expresses feeling dizzy and needing to lie down, Basil takes her to his office, where he kisses her passionately and fondles her breasts. Despite her drunken state, Clarrie kisses him back.

Later, as Basil is leaving the party, Astrid, one of his colleagues, invites him to her hotel for sex. Basil agrees enthusiastically. After having sex in the hotel room, Basil falls asleep naked on the bed. Astrid, who had planned this encounter, takes several photographs of him while he is asleep. Astrid’s intention is to blackmail Basil into making her a partner in the firm by using these compromising photographs, as Basil is married.

Analyse the potential sexual offences committed by Basil and Astrid based on the following legal considerations:

1. Basil’s Conduct:

◦ The embracing and kissing of Samantha on both cheeks.

◦ The passionate kissing and fondling of Clarrie while she is drunk.

2. Astrid’s Conduct:

◦ The nature of her consent with Basil.

◦ The taking of compromising photographs of Basil while he is asleep.

Consider the following legal aspects:

• Sexual Assault (under sections 78, 74, 75, and 76 of the Sexual Offences Act 2003)

◦ Whether Basil’s actions towards Samantha and Clarrie constitute sexual assault.

◦ Whether Clarrie's consent was vitiated by her drunken state.

◦ Whether Astrid's actions involving Basil can be considered sexual offences under the given circumstances.

Analysis

1. Basil’s Conduct

a. Sexual Assault of Samantha

◦ Nature of the Conduct: The embrace and kisses, though typically less severe, can be considered sexual due to the nature and context of Basil’s behaviour.

◦ Consent: Samantha allowed the kisses to avoid offending Basil, but this could imply a lack of genuine consent. Given the context, this might not necessarily meet the threshold for sexual assault under the Sexual Offences Act. It depends on whether the court considers that consent was freely given or if it was influenced by Basil’s persistent advances.

b. Sexual Assault of Clarrie

◦ Nature of the Conduct: Kissing passionately and fondling breasts are clear examples of sexual acts.

◦ Consent and Drunkenness: Under section 74, consent must be given freely and with the capacity to choose. Clarrie’s drunken state raises significant issues regarding her capacity to consent. Since Basil deliberately served her an alcoholic drink knowing it would impair her judgment, this can be seen as a form of deception affecting consent. According to cases like Bree (2007) and Hysa (2007), drunken consent can be vitiated if the individual is too impaired to understand or communicate consent.

Astrid’s Conduct

a. Nature of Consent

◦ Consent to Sex: Basil consented to sex with Astrid enthusiastically, and there is no indication of any deception related to the act itself. Under section 76, deception must relate to the nature or purpose of the act. Since there is no evidence that Astrid deceived Basil about the nature or purpose of the sexual activity, section 76 would not apply here.

b. Compromising Photographs

◦ Sexual Offences: The act of taking compromising photographs of Basil while he is asleep does not directly constitute a sexual offence under the Sexual Offences Act, but it can be considered a serious breach of privacy and could be part of a blackmail scheme.

Conclusion:

◦ Basil could be liable for sexual assault concerning Clarrie, primarily due to the issues around consent caused by her intoxication. The potential assault on Samantha is less clear-cut but may warrant further legal scrutiny.

◦ Astrid's actions do not constitute a sexual offence under the Sexual Offences Act directly but could lead to other legal issues such as blackmail or breach of privacy.