BeckyGlam
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Jack and Brandon impersonate their friend Sue on a dating site and chat with John telling him that Sue has a rape roleplay fantasy (she doesn't). After a while of chatting John and 'Sue' (in reality Brandon and Jack) agree to meet up 'for a date' to fulfil Sue's fantasy. Jack and Brandon tell Sue that they set her up with a friend of theirs and send her on a date with John.

When Sue gets later into the elevator, John follows her and has sex with her against her will.

The question I have is could you say that Jack and Brandon cause Sue to engage in sexual activity without her consent and could be liable contrary to s4 of the SOA 2003?

I'm stuck because I feel like they did, but on the other hand, it was John who was the main actor who made her have sex with him.

What authority could I use to support either argument?
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(Original post by BeckyGlam)
Jack and Brandon impersonate their friend Sue on a dating site and chat with John telling him that Sue has a rape roleplay fantasy (she doesn't). After a while of chatting John and 'Sue' (in reality Brandon and Jack) agree to meet up 'for a date' to fulfil Sue's fantasy. Jack and Brandon tell Sue that they set her up with a friend of theirs and send her on a date with John.

When Sue gets later into the elevator, John follows her and has sex with her against her will.

The question I have is could you say that Jack and Brandon cause Sue to engage in sexual activity without her consent and could be liable contrary to s4 of the SOA 2003?

I'm stuck because I feel like they did, but on the other hand, it was John who was the main actor who made her have sex with him.

What authority could I use to support either argument?
I think it is arguable that they caused Sue under s4. But there is the novus actus element, which makes it tricky.

I think the more interesting argument is they caused John to engage in sexual activity without consent. Presumably he did not consent to have sex with Sue, where Sue in fact did not consent. They deceived John, who then engaged a sexual activity because of that deception.
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RV3112
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(Original post by BeckyGlam)
Jack and Brandon impersonate their friend Sue on a dating site and chat with John telling him that Sue has a rape roleplay fantasy (she doesn't). After a while of chatting John and 'Sue' (in reality Brandon and Jack) agree to meet up 'for a date' to fulfil Sue's fantasy. Jack and Brandon tell Sue that they set her up with a friend of theirs and send her on a date with John.

When Sue gets later into the elevator, John follows her and has sex with her against her will.

The question I have is could you say that Jack and Brandon cause Sue to engage in sexual activity without her consent and could be liable contrary to s4 of the SOA 2003?

I'm stuck because I feel like they did, but on the other hand, it was John who was the main actor who made her have sex with him.

What authority could I use to support either argument?
Jack and Brandon's liability under s.4 regarding Sue, depends on whether John's actions are an intervening act.

You will need to consider if John had the requisite mens rea for rape. A handy case to look at is D.P.P. v. Morgan, although the law was different at the time of the case. If John did not have mens rea, then he is an innocent agent and his actions are not an intervening act. Also, as a result of this finding, liability for Jack and Brandon may exist for rape. If you conclude that John did not have a reasonable belief in the consent of Sue, then you need to consider if his actions broke causation. Look at R. v. Pagett and Enviromental Agency v Empress Car.

Next, depending on what the question asks, you could consider whether John's consent is negated by s.76 of the 2003 Act. Note that John needs to be a complainant under this section. Was he deceived as to the "nature and purpose" of the relevant act (Note that this refers to the sexual nature and purpose of the act, but its a point worth arguing your way through anyway). Secondly, did Jack and Brandon induce his consent by impersonating someone known to him (There's no indication Sue and John knew each other prior to the rape).
Last edited by RV3112; 2 years ago
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BeckyGlam
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(Original post by RV3112)
Jack and Brandon's liability under s.4 regarding Sue, depends on whether John's actions are an intervening act.

You will need to consider if John had the requisite mens rea for rape. A handy case to look at is D.P.P. v. Morgan, although the law was different at the time of the case. If John did not have mens rea, then he is an innocent agent and his actions are not an intervening act. Also, as a result of this finding, liability for Jack and Brandon may exist for rape. If you conclude that John did not have a reasonable belief in the consent of Sue, then you need to consider if his actions broke causation. Look at R. v. Pagett and Enviromental Agency v Empress Car.

Next, depending on what the question asks, you could consider whether John's consent is negated by s.76 of the 2003 Act. Note that John needs to be a complainant under this section. Was he deceived as to the "nature and purpose" of the relevant act (Note that this refers to the sexual nature and purpose of the act, but its a point worth arguing your way through anyway). Secondly, did Jack and Brandon induce his consent by impersonating someone known to him (There's no indication Sue and John knew each other prior to the rape).
Thanks for the answer! Just to follow up on that: Can the meaning of the conduct element (''cause another person (B) to engage in an activity?') here be interpreted to include putting a person (B) in a situation where they will become engaged in sexual activity against their will? Meaning that Jack and Brandon did not directly ''cause'' Sue to engage in sex. intercourse, but they put her into a situation where she did not have a choice.

I can see how they could have directly caused John to engage, but would the same apply to Sue?
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RV3112
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(Original post by BeckyGlam)
Thanks for the answer! Just to follow up on that: Can the meaning of the conduct element (''cause another person (B) to engage in an activity?' here be interpreted to include putting a person (B) in a situation where they will become engaged in sexual activity against their will? Meaning that Jack and Brandon did not directly ''cause'' Sue to engage in sex. intercourse, but they put her into a situation where she did not have a choice.

I can see how they could have directly caused John to engage, but would the same apply to Sue?
Yes. So, the first step in establishing if causation exists is to apply the "but for" test. Here, you need to look at the conduct of Jack and Brandon. But for their actions, Sue would have not had sex without her consent. So, essentially, if Jack and Brandon never existed, would the incident between John and Sue have occurred? The answer is clearly, no. This is called factual causation.

Factual causation will not necessarily mean that someone is criminally liable, however. If X was to ask his wife Y to leave their flat and buy some milk, and Y is murdered on the way to the supermarket by Z, technically there is a factual causal link between X's conduct and Y's murder, but it would be ridiculous to prosecute X for manslaughter. So the second step is to see if there is legal causation.

For legal causation, we look for a link between the conduct, and moral responsibility for the result offence. Was the consequence simply too remote from the action to impose criminal liability (see e.g. R. v. Finlay, R. v. Dalloway). In the problem question, Jack and Brandon specifically told John that Sue had a rape fantasy, and arranged the date. Consider how remote was the possibility of Sue having sex without her consent as a result of their culpable conduct?
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