Conditional Consent to Sexual Intercourse.

FERGAL7

Does anyone know of any Irish case law where the following question is addressed:

"If the man tells the woman he will wear a condom, she believes him, they start to have sex and he infact didn't wear a condom did her consent to sex rest on the condition of him wearing a condom and if he didn't with her believing he did did his actions amount to rape. Essentially did her consent to intercourse rest on the outlined condition being fulfilled?"

hullaballoo

AFAIR, it's not rape because there's consent to the act of intercourse, as defined by the legislation.

There was a case where a prostitute who wasn't paid claimed she was raped but it was found that this wasn't rape since she consented to the act. I can't remember the name of the case and I'm not googling it.

Paz-CCFC

Generally, the question of whether certain conduct vitiates consent is dependent on the qualitative nature. If someone gains the consent by misleading the person that they are doing something entirely different (eg, a surgical procedure), then the consent is not valid. That is not the case, however, if the consent has been given on the strength of something (eg, the mistaken belief that the parties were married). In the latter, the person who gave consent fully understands that they are having sex. In the former, they do not.

Whether that applies to something as specific as pretending to use a condom, I don't know. You will probably easily find the necessary information in any criminal law textbook under sexual offences.

Pat Mustard

hullaballoo wrote: »

AFAIR, it's not rape because there's consent to the act of intercourse, as defined by the legislation. There was a case where a prostitute who wasn't paid claimed she was raped but it was found that this wasn't rape since she consented to the act. I can't remember the name of the case and I'm not googling it.

R v Linekar [1995] 2 Cr App R 49 http://www.e-lawresources.co.uk/cases/R-v-Linekar.php

Wasn't there another case where there was fraud as to the identity of the accused? The accused pretended to be the complainant's husband, in a darkened bedroom. The complainant's consent was vitiated by the fraud and the accused was guilty of rape.

FERGAL7

The case about the prostitute is an English case R v Linekar [1995] 3 All ER 69. The court did find in that scenario the rape hadn't occurred as the agreement for payment did not relate specifically to the nature of the actual act of intercourse.

However the English courts have since ruled in Julian Assange v Swedish prosecution Authority [2011] that a scenario such as the one i am presenting does constitute rape. They have also ruled in In R v The DPP [2013] EWHC 945 that an agreement not to ejaculate during intercourse not being kept constitutes rape. I have been looking through textbooks and databases unfortunately I can't find an Irish case relating specifically to this question

I think the case you are referring to about the husband might be DPP v C [2001] 3 IR 345.

Tom Young

s.63 of the Offences Against the Person Act 1861, as this does not require ejaculation to be present in order to prove the offence of rape. Similarly in AG v Dermody [1956] I.R. 307 the court held that even the slightest penetration will suffice in order to prove the offence of rape.

Definition of Rape

Section 2(1) of the Criminal Law (Rape) Act 1981 defines rape as when a man has intercourse with a woman, who at the time of intercourse does not consent, and at the time he knows she does not consent or is reckless as to whether or not she is consenting. [The words highlighted should be the core considerations of any assessment in re. consent in this regard.]

Consent as an ongoing requirement

It was established in Kaitamaki v R [1984] 2 All E.R. 435 that consent is an ongoing requirement; as such if a man is asked to stop at any stage during the intercourse and he fails to do so, this will constitute rape, irrespective of whether consent was initially forthcoming:

“The purpose of the (UK) Act was to remove any doubts as to the
minimum conduct required to prove the fact of sexual inter -
course, and the word ‘complete’ in that section was used in the
sense of having come into existence but not in the sense of
having come to an end”.

Although the Act referred to is English and the Irish equivalent does not require the intercourse to be complete, the ratio still stands that intercourse once begun will suffice for that element of the offence.

Failure to resist

Where a victim fails to resist, discuss this fact with reference to House of Lords decision in R v Olugboja [1981] 3 All E.R. 443 which held that a failure to resist cannot be construed in favour of an accused. This decision is reflected in this jurisdiction in s.9 of the Criminal Law Rape Act 1990 which provides that failure to resist cannot be construed as consent in the circumstances.

Recklessness as to consent

In R. v Morgan [1976] A.C. 182 in which the House of Lords found that the
mens rea for rape is to be judged subjectively, and as such the consideration for the court is whether the accused’s belief as to consent was an honestly held one. Equally, consideration should always be given to the fact that consent is an ongoing requirement (per Kaitamaki v R) and at every stage of intercourse, the accused must be satisfied that consent is present.

DPP v Creighton [1994] 1 ILRM 551: The type of recklessness required in a rape case is heedless conduct on the part of an accused.

DPP v McDonagh [1996] 2 ILRM 468: Where an accused person pleads they honestly believed the woman was consenting, evidence as to the presence or absence of reasonable grounds justifying that belief must be considered under s.2(2) of 1981 Act but only where the evidence is the woman did not consent and the accused person is seeking to rely on their belief.

Carawaystick

There was a case in Israel a few years back, where a palestinian man was convicted of rape because he told an israeli woman he was a jew before she asked him to have sex with her on the roof of a building.

FactCheck

Carawaystick wrote: »

There was a case in Israel a few years back, where a palestinian man was convicted of rape because he told an israeli woman he was a jew before she asked him to have sex with her on the roof of a building.

There was rather more to that than the initial clickbait headlines.

Physical evidence of bruises, a plea bargain, the fact that the judge's decision was far more concerned with his pretending to be single rather than his ethnic background - it was a bit more complicated than first made out in the press. As so many legal decisions are.

Paz-CCFC

The Mustard wrote: »

R v Linekar [1995] 2 Cr App R 49 http://www.e-lawresources.co.uk/cases/R-v-Linekar.php

Wasn't there another case where there was fraud as to the identity of the accused? The accused pretended to be the complainant's husband, in a darkened bedroom. The complainant's consent was vitiated by the fraud and the accused was guilty of rape.

Section 4 of the Criminal Law Amendment Act 1884 states that impersonating one's husband vitiates consent. And DPP v. C, as Fergal cited above, states that it's any case of fraud re identity. That particular case involved a non-married couple.

FERGAL7 wrote: »

The case about the prostitute is an English case R v Linekar [1995] 3 All ER 69. The court did find in that scenario the rape hadn't occurred as the agreement for payment did not relate specifically to the nature of the actual act of intercourse.

However the English courts have since ruled in Julian Assange v Swedish prosecution Authority [2011] that a scenario such as the one i am presenting does constitute rape. They have also ruled in In R v The DPP [2013] EWHC 945 that an agreement not to ejaculate during intercourse not being kept constitutes rape. I have been looking through textbooks and databases unfortunately I can't find an Irish case relating specifically to this question

I think the case you are referring to about the husband might be DPP v C [2001] 3 IR 345.

Hegarty v. Shine (1878) 4 LR (Ir) 288 held that non-disclosure of sexual health did not vitiate consent. Though, the judges were, as McMahon and Binchy noted (page number I'm not sure, this is only from memory of sexual offences in the tort sphere), particularly harsh against the woman, as they disapproved of her having sex outside of marriage. A modern court might see things differently. I recall vaguely from criminal law tutorials from 4/5 years ago that knowingly or recklessly passing on an STI can constitute an offence, but perhaps it's an assault rather than rape.

Papadimitropoulos v. R (1957) 98 CLR 249 (Australian High Court) was the case where a woman thought that she was married, but that did not vitiate the consent.

Dandelion6

FERGAL7 wrote: »

However the English courts have since ruled in Julian Assange v Swedish prosecution Authority [2011] that a scenario such as the one i am presenting does constitute rape.

The Assange case wasn't the scenario you presented. It was a case where the woman was actually asleep when he began intercourse with her. A sleeping person cannot give any consent, conditional or otherwise.

Here is a recent Australian case of interest.

conorh91

Dandelion6 wrote: »

A sleeping person cannot give any consent, conditional or otherwise.

Interesting case arose in the English courts in 2013.

Defendant accused of raping a woman whilst she slept, claimed that he too was asleep at the time. This has been referred to as being in a state of 'sexsomnia'.

Two of the three ingredients were admitted by the defendant (intercourse, and absence of consent). But because the defendant was performing automatically in his sleep, he did not have the third ingredient - intent/recklessness. So he was acquitted.

edit: source: Criminal Law and Justice Weekly (2013) Issue 16, April. 'Scuttlebutt' p.273

Peregrinus

Dandelion6 wrote: »

The Assange case wasn't the scenario you presented. It was a case where the woman was actually asleep when he began intercourse with her. A sleeping person cannot give any consent, conditional or otherwise.

In the Assange case there was also a charge arising out of a separate incident in which the complainant consented to sex with a condom, but Assange allegedly proceeded without a condom. But the charge arising out of that incident was not rape, but the lesser charge of "sexual molestation". That suggests that, in Sweden at least, consent premised on the use of a condom followed by non-use of the condom doesn't support a rape charge.

clashburke

Case reported today which is similar to some of those referenced above. Basically what The Mustard said above about purporting to be the husband.



http://www.independent.ie/irish-news/courts/man-admitted-sexually-assaulting-woman-as-she-slept-at-party-court-hears-31082658.html