Problem Question: Criminal Law, No.10

Problem Question: Criminal Law, No.10

Problem Question

Melissa is a freelance actor in England. During rehearsals for a play, her co-actor Sean engaged in intrusive physical contact not included in the stage directions, which Melissa found unsettling but did not resist due to concerns about her career. After the play, Melissa’s agent, Arthur, invited her to his flat for dinner, during which he repeatedly topped up her drink. Melissa became intoxicated, fell asleep, and woke up to find Arthur next to her, kissing her and then proceeding to remove her clothes and have penetrative sex with her. Discuss the criminal liability of Sean and Arthur for their actions.

Analysis

Sean’s Criminal Liability

1. Sexual Assault

• Definition under s.78 of the Sexual Offences Act 2003: Sexual assault includes any non-consensual sexual touching or activity. Under s.78, "sexual" is defined as an activity that is sexual in nature.

• Objective Test: The test for determining whether an act is sexual involves an objective assessment of the nature of the act and the context in which it occurs. The test from R v H [2005] involves a two-stage analysis:

1. Sexual by Nature: The physical contact Sean engaged in, although not explicitly described, was intrusive and not part of the stage directions. Such contact, if found to be sexual in nature, would satisfy this element.

2. Sexual Based on Circumstances: Given the context—rehearsals and the intimate nature of the scenes—it is likely that Sean's actions could be deemed sexual based on the circumstances.

• Consent (s.74): For consent, it must be given freely and with the capacity to choose. Melissa did not resist the contact due to fear of career repercussions, which undermines genuine consent. According to R v Kirk, "willing submission" is not equivalent to consent if it is given under duress or fear.

• Conclusion: Sean's conduct could potentially amount to sexual assault if the contact is found to be sexual in nature and Melissa did not consent. Her fear of career damage and lack of resistance do not equate to genuine consent.

Arthur’s Criminal Liability

1. Rape

• Actus Reus: The actus reus of rape is defined as the penetration of the vagina, anus, or mouth by the penis without consent.

• Mens Rea: The mens rea for rape requires that the perpetrator either knows that the victim does not consent or is reckless as to whether the victim consents.

◦ Intoxication and Lack of Capacity: Melissa became intoxicated due to Arthur’s actions, which impaired her ability to give consent. In Hysa [2007], it was established that significant intoxication undermines capacity to consent. Melissa’s passing out and subsequent state suggest she was not capable of consenting when Arthur proceeded to have sex with her.

◦ Submission vs. Consent: Submission due to fear or distress is not the same as consent. Melissa’s silence and submission, particularly when she indicated feeling unwell, do not constitute consent.

• Deception and s.76:

◦ Deception about Nature or Purpose: Section 76 of the Sexual Offences Act 2003 provides a conclusive presumption of non-consent if deception is involved. However, in this case, there was no deception about the nature of the act (penetration) but rather a situation where Melissa was incapacitated. Therefore, s.76 does not apply directly, but the absence of genuine consent and Arthur’s intention to continue despite Melissa’s state is critical.

• Conclusion: Arthur’s actions constitute rape. He engaged in penetrative sex with Melissa without her valid consent, taking advantage of her intoxicated state and lack of capacity to resist.

2. Sexual Assault

• Act of Kissing Without Consent: Arthur also kissed Melissa without her consent. This act of kissing falls within the scope of sexual assault if Melissa did not consent.

• Application of R v H Test: The objective test for sexual assault is fulfilled if the kissing is deemed sexual in nature and Melissa did not consent. Even if the kissing is less severe compared to the rape, it still constitutes sexual assault if done without consent.

Conclusion

Sean could be liable for sexual assault due to the intrusive physical contact that was sexual in nature and not consensual. Arthur’s actions constitute rape due to penetrative sex conducted without Melissa’s consent, facilitated by her intoxicated state. Arthur’s kissing of Melissa also constitutes sexual assault if it is found that Melissa did not consent. Both Sean and Arthur face significant criminal liabilities for their actions.