LAW MODERATIONS 2000 - 2001: CRIMINAL LAW

TUTORIAL 4: RAPE AND INDECENT ASSAULT

General

C L R C 15th. Report (1984) Cmnd 9213.

Sexual Offences Act, 1956; Sexual Offences (Amendment) Act, 1976.

Sexual Offences Act, 1993

Criminal Justice and Public Order Act, 1994, ss 32, 142, 143

J Sutherland, "Is Alex a Rapist?" in Is Heathcliff a Murderer?, pp 202-212

**S Gardner, "Recklessness and Inconsiderate Rape" [1991] Crim L R 172

*S Gardner, "Appreciating Olugboja" (1996) L S 275

J Gardner & S Shute, "The Wrongness of Rape" in J Horder, ed, Oxford Essays in Jurisprudence, 4th Series (Oxford 2000), pp 193 - 217.

Bowley, "New Labour, New Sex" 2000 New Law Journal 1134-37

Temkin, "Getting it Right: Sexual offences Law Reform" 2000 New Law Journal 1169-1170

Indecent Assault

****Clarence (1888) 22 QBD 23, esp. 33, 37, 43-44, 46, 51-53.

*Donovan [1934] 2 KB 498.

****Kimber [1983] 3 All E R 316.

*Caswell [1984] Crim L R 111.

**Court [1987] Crim L R 134 (CA); [1988] Crim L R 537 (HL)

**McAllister [1997] Crim L R 233

****B v DPP [2000] 1 All ER 833

Rape

Camplin 1845 1 Den 89 [English Reports Vol 169, p 163]

Fletcher 1859 Bell CC [English Reports Vol 169, p 1168]

Fraser 1847 Ark 280

Sweenie 1858 3 Irv

(Since the Bodleian Library only holds volumes 1,4 and 5 of Irvine, you will have to rely upon a secondary source, e.g. Gane & Stoddard, Casebook on Scottish Criminal Law.)

Flattery (1887) 2 QBD 410.

Williams [1923]1 KB 340.

****Turner [1944] KB 463, 469

*Cogan and Leak [1975] 2 All E R 1059.

****Morgan [1976] AC 192

***Pappajohn (1981)1 Ox. Jour. Leg. Stud. 432.

*Kaitamaki (1981)1 Ox. Jour. Leg. Stud. 438.

***Olugboja [1981] Crim L R 717; [1981] 3 All E R 443.

Mohammed Bashir [1982] Crim L R 681.

*Pigg [1982] 2 All E R 591

***Woods [1982] Crim L R 42.

Breckenridge [1984] Crim L R 174.

**Satnam and Kewel (1984) 78 Cr App Rep 149.

****Taylor (1985) 80 Cr App Rep 327

Haughian and Pearson (1985) 80 Cr App Rep 334

**Roberts [1986] Crim L R 188.

**Fotheringham [1988] Crim L R 846

*Schaub [1994] Crim LR 531

***Elbekkay [1995] Crim LR 163

*Linekar [1995] Crim L R 320

*Malone (1998) 2 Cr App Rep 447

Matrimonial Rape

Miller [1954] 2 QB 282

Steele [1977] Crim L R 290

***Stallard 1989 Scottish Criminal Case Reports 248; or 1989 Scots Law Times 469

(NB there are several "runs" of pages in SLT, so persist until you find the correct p. 469)

R v C [1991] 1 All ER 755

R v J [1991] 1 All ER 759

****R v R [1991] 1 All E R 747 (Owen J); [1991] 2 All ER 257 (CA);

[1992] 1 A C 59; [1992] Crim L R 207 (HL)

****C R and SW v UK (1995) 21 EHRR 363

Attempt

*Khan & Ors. [1990] Crim L R 519

**AG's Ref (No 1 of 1992) [1993] Crim LR 274



Civil Liability

Miles v Cain (1988) QBD (Caulfield J); Court of Appeal 14/12/89 - unreported (see Lawtel)



Essays

What is meant by "consent" in the law of rape? What mens rea is required as to the victim's state of mind? Is the law now satisfactory?

OR

Is the qualification visited upon the Morgan principle in Pappajohn defensible in logic, law, principle and policy?

OR

What, if anything, does the word "unlawful" add to the definition of a crime?





Problem

Veronica and Robert are both guests at an all-night party. The host, rather after the manner of Howard Kirk in Bradbury's The History Man, arranges the house so that guests may use not only public rooms in the house but also secluded private areas such as the bedrooms. Veronica, hopeful that her boy-friend might join her, leaves the main party and finds a quiet, unoccupied bedroom. She lies on the bed and falls asleep. Robert, partly out of boredom and partly out of curiosity, also leaves the main party and strolls through the house. On entering the bedroom where Veronica is sleeping, he realises that someone is there and starts to leave. At that point Veronica awakes and, perhaps still drowsy, or befuddled with wine, thinking Robert to be her boy-friend says, "Come and sit by me". Thus emboldened, Robert joins Veronica on the bed. He embraces her. She embraces him back. Intercourse ensues during which Veronica becomes aware that this not her boy-friend and asks Robert to stop. He does not and Veronica becomes increasingly frantic, struggling and screaming. Before this attracts anyone's attention Robert leaves. Veronica is inconsolable. Her screams ultimately attract attention. The police become involved and Robert is charged with rape. He now seeks you advice. Would it make any difference to your advice whether Robert was virtually sober or very drunk? What would the legal position be had Robert, knowing of Veronica's mistake, pretended to be her boyfriend?