M211 Law and Criminal Justice : New Philosophical Essays on Rape

Grounds for Appeal 

• Consent should be accepted by the jury as the defense in this case as cited in various case laws.
• The trial court was in error in holding that consent is inappropriate and should be ignored
• The prosecution should prove intent of indecent assault, and the defendant should be acquitted on the grounds of consent

R v Billy

Anita and Billy have been in a relationship for twelve years, they both love each other, and they have been living together for a year. The love they have for each other is evident as seen in how they treat each other and buy each other gifts. They have been in a relationship for twelve years, and all that time all they have known is inflicting pain on each other for sexual gratification. The sexual gratification is what gives them the most pleasure.

When Billy started pulling Anita's hair, she kept shouting "more" and this only amounts to consent. She was sharing the pleasure, and Bill only thought it to be safe. If Anita felt any pain, she would have asked Billy to stop. Billy can, therefore, use consent as the defense, even without consent thereof, there is implied consent through Anita's actions. In Lamb, R v [1967] CA lack of consent still did not secure a conviction for the accused. In this case, the deceased and the accused were engaging in a game, where they played with a revolver. The chamber had two bullets, and hen the defendant pulled the trigger none of them were opposite of the hammer. When the chamber rotated, the deceased was killed by the accused. It was held that at the time both parties were playing the game, they both shared the joke and they believed they were safe. The court held that since the deceased shared the joke, and did not feel threatened, there was no assault hence no unlawful act to support manslaughter (Stone, 1999 P. 91,92, 112). Comparatively. In Anita's and Billy's situation, both parties believed that Anita was safe thus the continuous of pain for sex gratification.

In R. v. Cey, 75 Sask. R. 53; 48 C.C.C. (3d) 480 (C.A. 1989) - In this case, the accused inflicted pain to the complainant on the head during an ice- hockey game. The victim sustained injuries and leading to a whiplash and a concussion, consequently making him hospitalized for three days. During the trial, the judge found out that the accused had no intentions of injuring the victim, and the accused had no intentions of applying a greater force to the victim than the intended force used while playing the game. After sustaining the injury, the complainant continued playing the game. The court based on his continued performance in the game; held that the willingness amounted to the consent of body contact impliedly. This finding was used by the jury in the acquittal of the accused.

Given this case, continued request by Anita to be pulled and strokes implies consent, and therefore Billy should be acquitted. On clarifying the issues, the court further explained that the consent of participants in sports should be recognized through some factors; such as the standards or the rules and the nature of the game. Also, the state of mind of the accused is crucial accompanied by nature of the arm from degree of force. In Billy's situation, the nature of sexual gratification has a certain nature where infliction of pain occurs, and ultimately Bill did not intend to injure his lover for twelve years. He was clearly being playful and doing what is his best imagination and comfort would please his lover.

Donovan, R v (1934) KBD

In this case, the accused was convicted of common assault and indecent assault on a 17-year-old who was the complainant. The indecent assault occurred when the accused caned the 17 year old for purposes of sexual gratification during consensual sex. The accused sued consent as his defense during the trial. Despite the Jury not discussing consent as a matter of importance in such situations, sexual gratification is similar to other games such hockey, where certain risks are involved. When consenting adults decide to participate in such games, they are consenting to the outcomes also (Jones, 2010 p. 156).

Regina vs. Kimber CACD 1983

In this case, it was stated that the defendant's belief is what goes to prove negative intent and not the mens rea per say. Another observation was that a state of mind which is guilty was the intention to use force and violence without the consent of the woman. Therefore, if the defendant did not intend to use force on the woman without her consent or to cause harm or violence, he is entitled to be found not guilty (Molan, 2001 p.221-223). Otherwise, if the defendant is violent causing harm and believes there is consent, then the charge is not proven. In this case, the charge is not proven irrespective of the defendants' beliefs. Evidence has to be presented to show that the appellant did what he did unlawfully. The indifference to the woman's wishes just establishes recklessness. In this case, the prosecution had the burden of proving indecent assault on the woman. Therefore, the prosecution has to prove that the accused had the intent to commit indecent assault on the woman. This is because section 14 did not have any implications to show that the drafters of the law had intentions to exclude mens rea.

In Billy's scenario, he had no intention of causing harm to Anita, and such state of mind did not previously exist before the intense sexual encounter. In Billy's case, we see negative intent as to indecent assault. Billy only performed what Anita requested. Therefore the prosecution needs to prove intent to commit or indecent assault, or the accused should be acquitted.

Therefore, the prosecution first needs to prove that the accused intended to commit an assault before proving that he assaulted the complainant. Assault in this scenario includes a battery. An assault is an act which a person recklessly or intentionally causes another person to sustain unlawful violence (Hirschel, 2007 p. 38). The accused in this scenario intentionally laid his hands on the complainant. Usually, this could be enough to prove the charge (Gordon, 2010 p. 127). However, it is important to prove that what the defendant did was unlawful. Normally, when there is evidence of indecent assault, by evidence, it can prove that such assault was intended to cause harm. However, in many cases, the prosecution rely on the fact that such assault was non-consensual. The prosecution, therefore, remains with the burden of proofing that there was the lack of consent. In this case, it was important that there was an honest belief as to consent and that such belief needs to be reasonable (Duff, 2011 p. 62). Billy had reasonable beliefs in regards to consent by Anita, and the charge should be proved prima facie.

Jones and others, R v (1986) CA

The defendant who was a school boy, amongst other two boys tossed the complainant in the air while playing birthday bumps. In the act of tossing, the complainants fell, one suffered a broken arm while the other suffered a raptured spleen. In this case, consent was accepted as the defense because there was no intention to cause injury (Herring, 2016 p. 367-371). The mere foresight of injury during the rough indiscipline play was not sufficient grounds to charge the accused of indecent assault. The defendant was acquitted. Accordingly, in Billy's case, initially, there was not intent to cause bodily harm hence Billy should be acquitted.

Also, in the case above, we see a causal chain of events. Whereby Billy's actions of sexual gratification were not the immediate cause of Anita's comma. Her light-headedness led to dizziness causing her to fall the stairs and hit her head. On arriving at the hospital the doctor's negligence in inspecting her properly led to bleeding around her brain making her to eventually get into a comma. In this scenario, the charge on Billy is not sufficiently proved hence he should be acquitted. Initially, Billy and Anita were in love even as he called the paramedics and as he kissed her while he waited. We do not see any motive behind Billy trying to assault Anita or any differences that may have led to such assault.

Therefore Billy should be acquitted as seen in Wilson, R v (Alan) (1996) CA where activities such as sexual gratification do not require the consent of the state for such to occur. In the Wilson case, the wife urged the defendant who was the husband to use a hot knife in branding his initials in her buttocks. The courts stated that there was no logical difference between what happened and when someone gets a tattoo. Accordingly, the court also commented that such activities do not require the consent of the state. Therefore, in the Wilson case, the husband was not found guilty of grievous assault. In Wilson's case, the court further observed that there was no public policy which demanded such activities to be met by sanctions in criminal law. Therefore, Billy should be acquitted because his actions were as a result of Anita's instigation; and falling the stairs which eventually led to a causal chain was not foreseeable in this case.

Skeletal word count (1520 words )

Statutes and statutory instruments

Offenses against the Person Act 1861 (OAPA)

Reference:

Burgess-Jackson, K. (1999). A most detestable crime: New philosophical essays on rape. New

York: Oxford University Press.

Dine, J., Gobert, J. J., & Wilson, W. (2010). Cases and materials on criminal law. Oxford: Oxford University Press.

Duff, A. (2011). The structures of the criminal law. Oxford: Oxford University Press.

Gordon, G. H., In Chalmers, J., In Leverick, F., In Farmer, L., & Ashworth, A. (2010). Essays in criminal law in honour of Sir Gerald Gordon. Edinburgh: Edinburgh University Press.

Herring, J. (2016). Criminal law: Text, cases, and materials.Bottom of Form

Hirschel, J. D., Wakefield, W. O., & Sasse, S. (2007). Criminal justice in England and the United States. Sudbury, MA: Jones and Bartlett Publishers.

Jones, C. M. (2010). Forensic & Medico-Legal Aspects of Sexual Crimes and Unusual Sexual

Practices.

Lawson, J. D. (1885). Defenses to Crime: Disabilities of parties; agency; duress; accident, ignorance, and mistake; consent; omissions and attempts (Vol. 3). Sumner Whitney.

Mills, W., Stone, A. P., Wilson, A., Bulwer, J. R., Great Britain., Great Britain., Great Britain., ... Incorporated Council of Law Reporting for England and Wales. (1876). The Law reports. London: Printed for the Inc. Council of Law Reporting for England and Wales, by W. Clowes and Sons.

Molan, M. T. (2001). Sourcebook on criminal law. London: Cavendish Pub.

Stone, R. (1999). Offences against the person. London: Cavendish.

Case Law

Donovan, R v (1934) KBD

In R. v. Cey, 75 Sask. R. 53; 48 C.C.C. (3d) 480 (C.A. 1989)

Jones and others, R v (1986) CA

Lamb, R v [1967] CA

Regina vs. Kimber CACD 1983

Wilson, R v (Alan) (1996) CA

(Legal and non- legal sources word count 247)