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    hi,


    after a sexual assault, a victim pushes the attacker away, who the stumbles backwards and falls down some steps. The attacker fractures his skull and loses conciousness. the woman run down and strips the man writing RAPIST on his body.

    the man had not raped her, nor attempted to rape her. I am not concerned with her potential liabilty for the s.20 offence of causing grievous bodily harm. What id like to know is there potential liabilty for stripping the man naked and wirting rapist on his body, when he in fact did it?


    any considerations appreciated, thanks
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    I think that's more likely to give rise to tortious liability than it is criminal and even then the action will probably fail because of the defence of ex turpi. I guess there could potentially be a battery under s.39 of the CJA 1988 but it's unlikely that the CPS would prosecute and even more unlikely that the magistrates would pass sentence. Furthermore, the victim probably has a defence under s.3 of the Criminal Law Act 1967 or s.76 of the Criminal Justice and Immigration Act 2008 where the extent to which self defence is deemed to be reasonable is determined by the geniune, albeit mistaken belief of the defendant.

    Edit: Also, there's definitely no liability under s.3 of SOA 2003; a sexual assault can only be committed if "the touching is sexual;" the criteria hasn't been met in this case.
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    (Original post by Mr_Deeds)
    I think that's more likely to give rise to tortious liability than it is criminal and even then the action will probably fail because of the defence of ex turpi. I guess there could potentially be a battery under s.39 of the CJA 1988 but it's unlikely that the CPS would prosecute and even more unlikely that the magistrates would pass sentence. Furthermore, the victim probably has a defence under s.3 of the Criminal Law Act 1967 or s.76 of the Criminal Justice and Immigration Act 2008 where the extent to which self defence is deemed to be reasonable is determined by the geniune, albeit mistaken belief of the defendant.
    Just a note.. how genuine is the belief that, to defend herself, the victim need to strip the attacker and write Rapist on his body? :lolwut:
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    sorry, what i forgot to mention was that both parties were voluntarily intoxicated.
    ive got a feeling that the girl is liable for something but i am perplexed.
    This is the final part of a problem question im answering.

    perhaps there is no liabilty and it is just a pointer to state that there was no rape or attempted rape in the first place.

    im still open to any other suggestions.
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    (Original post by equinoxsolar)
    sorry, what i forgot to mention was that both parties were voluntarily intoxicated.
    ive got a feeling that the girl is liable for something but i am perplexed.
    This is the final part of a problem question im answering.

    perhaps there is no liabilty and it is just a pointer to state that there was no rape or attempted rape in the first place.

    im still open to any other suggestions.
    In which case, because of s.76(5) of the CJIA 2008 the victim is not entitled to have her defence of self defence judged with reference to the circumstances as she believed them to be. This renders the defence objective and judged according to the standards of the sober "reasonable man." This may be important in that it renders her actions wholly disproportionate and unreasonable and it is therefore more likely that an offence has been committed pursuant to s.39 of CJA 1988.
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    (Original post by Kajsa)
    Just a note.. how genuine is the belief that, to defend herself, the victim need to strip the attacker and write Rapist on his body? :lolwut:
    This is a question of fact (degree and extent), not law, and so it is one which is to be decided by the jury. Interestingly, the Criminal Justice and Immigration Act 2008 was introduced on the back of criticisms of the old law of self-defence. The old law made it almost impossible for victims of domestic violence who reataliate and kill their partners to claim this defence and hence have their murder sentence reduced to one of manslaughter. The new law is considerably more liberal and subjective in that it places itself in the shoes of the victim and tolerates a certain degree of disproportionate and unreasonable force where the mistaken belief was nonetheless genuine. Arguably this legislation was, to a certain extent, designed to assist women who have to use force to resist an imminent attack from a stronger man. NB: As is the case here.

    s.76(7) states that: "In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case)—
    (a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and
    (b) that evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose."

    You make a valid reverse argument but remember, this woman thought that she was about to be raped - I will let you draw your own conclusions...
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    (Original post by Mr_Deeds)
    This is a question of fact (degree and extent), not law, and so it is one which is to be decided by the jury. Interestingly, the Criminal Justice and Immigration Act 2008 was introduced on the back of criticisms of the old law of self-defence. The old law made it almost impossible for victims of domestic violence who reataliate and kill their partners to claim this defence and hence have their murder sentence reduced to one of manslaughter. The new law is considerably more liberal and subjective in that it places itself in the shoes of the victim and tolerates a certain degree of disproportionate and unreasonable force where the mistaken belief was nonetheless genuine. Arguably this legislation was, to a certain extent, designed to assist women who have to use force to resist an imminent attack from a stronger man. NB: As is the case here.

    s.76(7) states that: "In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case)—
    (a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and
    (b) that evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose."

    You make a valid reverse argument but remember, this woman thought that she was about to be raped - I will let you draw your own conclusions...
    Thanks for the reply, I certainly can't wait to learn more when I get to uni in September :yes:

    I understand that my question is concerned with the facts and as you say would be decided by jury, however, since I think it's an interesting one I will still argue my point. Her action (writing RAPIST) does nothing to prevent him from attacking her again, surely this can't be seen as self defense?
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    (Original post by Kajsa)
    Thanks for the reply, I certainly can't wait to learn more when I get to uni in September :yes:

    I understand that my question is concerned with the facts and as you say would be decided by jury, however, since I think it's an interesting one I will still argue my point. Her action (writing RAPIST) does nothing to prevent him from attacking her again, surely this can't be seen as self defense?
    I completely agree and if you were the prosecution then that would be your argument - especially now that we have established that both parties were voluntarily intoxicated and so the defence of self defence cannot be judged according to the lenient provisions in the CJIA 2008.

    As for the opposite argument, and assuming that the CJIA 2008 was still applicable, you have to try and see the act of pushing the attacker away and writing on his chest as one whole act from beginning to end and that's where subsection 7 comes into play. The victim (who is now the defendant) is not expected to be rational in her measurement of what proportion of retaliatory force is necessary and this force is to be judged according to the defendant's instincts.
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    or she could (theoretically) use the defence of seeking the prevention of a crime. In this case she pushed the chap away to prevent, what she honestly and, what seems reasonably, believed was leading to an attempted rape.
    i think this would possibly have a greater success than that of self defence, as she could claim that writing RAPIST on his naked body was to make it known to any passer-by, so as to prevent any further sexual attacks..

    am i right ?:p:
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    (Original post by equinoxsolar)
    or she could (theoretically) use the defence of seeking the prevention of a crime. In this case she pushed the chap away to prevent, what she honestly and, what seems reasonably, believed was leading to an attempted rape.
    i think this would possibly have a greater success than that of self defence, as she could claim that writing RAPIST on his naked body was to make it known to any passer-by, so as to prevent any further sexual attacks..

    am i right ?:p:
    I assume that you're referring to s.3 of the Criminal Law Act 1967? If so then yes, you're right. I briefly mentioned that defence in my first post but I still think it will problematic in the same way that CJIA 2008 will now be. The defendant will have to prove that the force used was reasonable in the circumstances in the prevention of the crime. This is why s.76 of CJIA 2008 is easier to plead because it's judged according to the circumstances as the defendant believed them to be; unfortunately that defence isn't available though because of the voluntary intoxication.

    You have a good argument with s.3, just don't forget to show the reverse side of the coin by referring to the "reasonableness" of the force used - was it really reasonable for her to write "RAPIST" on his body in the "prevention of crime?" It would also be really good for you to refer to s.76 of the CJIA 2008 and briefly mention why that section isn't applicable.
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    thanks m8
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    No problem.
 
 
 
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