geetar
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#1
Report Thread starter 9 years ago
#1
Hi everyone

As part of my coursework, I'm writing a project report to advise a solicitor in dealing with someone charged under section 5 of the Sexual Offences Act 2003 (rape of a child under 13). I'm doing okay with most of it, but I'm not really sure what defences are actually available to the client.

According to the act (and upheld by case law, such as RvG), consent - the most common defence to rape - is actually irrelevant. It's held that someone under 13 can't consent, so that is no defence. It also says that age (ie: the defendent believing that the girl was over the age of 16) is irrelevant and again can't be used a defence.

One idea I have got is that it is possible for the CPS to be convinced that the client should be instead charged under sections 9 and 13 of the act, which have a lesser sentence and are less serious in terms of being on the sex offenders register etc. But are there actually any other defences?

I wouldn't ask, but I'm a bit stuck, and could do with some help. Merci.
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gethsemane342
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#2
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(Original post by geetar)
Hi everyone

As part of my coursework, I'm writing a project report to advise a solicitor in dealing with someone charged under section 5 of the Sexual Offences Act 2003 (rape of a child under 13). I'm doing okay with most of it, but I'm not really sure what defences are actually available to the client.

According to the act (and upheld by case law, such as RvG), consent - the most common defence to rape - is actually irrelevant. It's held that someone under 13 can't consent, so that is no defence. It also says that age (ie: the defendent believing that the girl was over the age of 16) is irrelevant and again can't be used a defence.

One idea I have got is that it is possible for the CPS to be convinced that the client should be instead charged under sections 9 and 13 of the act, which have a lesser sentence and are less serious in terms of being on the sex offenders register etc. But are there actually any other defences?

I wouldn't ask, but I'm a bit stuck, and could do with some help. Merci.
Just a linguistic point but consent is not a defence - it's an element of the offence (or rather, a lack of consent/reasonable belief in consent is an element in the ss.1-4 offences). Equally, age isn't a defence - it's an element of the offence.

Anyhow, most standard defences do apply. Duress? Intoxication, potentially. Can't see self-defence working nor mistake. Otherwise, yes, trying for a lesser offence would work.

Alternatively, just get him to plead guilty - 33% reduction in sentence if done early enough.
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geetar
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#3
Report Thread starter 9 years ago
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(Original post by gethsemane342)
Just a linguistic point but consent is not a defence - it's an element of the offence (or rather, a lack of consent/reasonable belief in consent is an element in the ss.1-4 offences). Equally, age isn't a defence - it's an element of the offence.

Anyhow, most standard defences do apply. Duress? Intoxication, potentially. Can't see self-defence working nor mistake. Otherwise, yes, trying for a lesser offence would work.

Alternatively, just get him to plead guilty - 33% reduction in sentence if done early enough.
Ah, thanks. Rep for you. How would duress apply?
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gethsemane342
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(Original post by geetar)
Ah, thanks. Rep for you. How would duress apply?
Depending on the facts - if he or a family member was threatened with violence IIRC.
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jjarvis
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#5
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(Original post by gethsemane342)
Just a linguistic point but consent is not a defence - it's an element of the offence (or rather, a lack of consent/reasonable belief in consent is an element in the ss.1-4 offences). Equally, age isn't a defence - it's an element of the offence.

Anyhow, most standard defences do apply. Duress? Intoxication, potentially. Can't see self-defence working nor mistake. Otherwise, yes, trying for a lesser offence would work.

Alternatively, just get him to plead guilty - 33% reduction in sentence if done early enough.
Not sure whether the defendant will be able to raise intoxication to negate MR for the s 5 offence. I think rape is a basic, not specific, intent offence. In Heard the court held that the touching element of the s 3 offence only required basic intent. By parity of reasoning, this suggests that the intentional penetration element of the s 5 offence will also be a basic offence. Provided the penetration was deliberate (and it seems exceptionally difficult to argue that it is not), intoxication will not help the defendant here.

In any case, defences are usually fact-specific, and occasionally claimant specific (e.g. insanity). If you haven't been given any specific indications that the claimant was intoxicated/a sane automaton/insane/under duress then you really can't do much. I wouldn't go casting around for facts which you've not been given. It's usually *relatively* clear if you can plead duress (threat of violence), insanity, intoxication, etc. You can look at the charging option, particularly if D is also a child. And you could plead guilty, as Geth notes (I haven't done procedure, so don't know anything about the sentencing consequences).
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gethsemane342
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#6
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(Original post by jjarvis)
Not sure whether the defendant will be able to raise intoxication to negate MR for the s 5 offence. I think rape is a basic, not specific, intent offence. In Heard the court held that the touching element of the s 3 offence only required basic intent. By parity of reasoning, this suggests that the intentional penetration element of the s 5 offence will also be a basic offence. Provided the penetration was deliberate (and it seems exceptionally difficult to argue that it is not), intoxication will not help the defendant here.

In any case, defences are usually fact-specific, and occasionally claimant specific (e.g. insanity). If you haven't been given any specific indications that the claimant was intoxicated/a sane automaton/insane/under duress then you really can't do much. I wouldn't go casting around for facts which you've not been given. It's usually *relatively* clear if you can plead duress (threat of violence), insanity, intoxication, etc. You can look at the charging option, particularly if D is also a child. And you could plead guilty, as Geth notes (I haven't done procedure, so don't know anything about the sentencing consequences).
I can't recall the law on intoxication though I do recall noting that Heard is wrong in reasoning... Or rather, it makes some kind of redundant reasoning.

I do think that specific intent can be negated IIRC. I think rape (and thus S.5) may be specific intent. Though as I say, I did this 2 years ago and was always a bit fuzzy on the point.
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Rayhaneh
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#7
Report 8 years ago
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Hi, I am doing the same problem question and now I need your help please. Could you please tell me that when you consider the section 5., did you mentioned the section6 and 7 or not?
Also I am not sure that whether I should talk about ss1-3 before I consider the section 5 or not? As the victim is under 13.
Thank you
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MukomaTinashe
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#8
Report 6 years ago
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ghg
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