To what extent does consent enable a defendant

General Remarks:It is my position that you have the bare castanetss of a good reply but it requires important fleshing out in order to better it plenty toachievea base on balls grade.

Initially, you couldattemptdividingthe work up into 4 distinguishable subdivisionsIntroduction ;To what extent does accept let turning away of liability ; Is this appropriate ; Decision. However, there are a figure of other points that could be tightened up:

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– Mentions: This is clearly a little workbut youshould still utilize some academic resources albeit atext editionand a twosome of Articles.A twosome of suggestions would beTemkin, Jennifer & A ;Ashworth, AndrewThe Sexual Offences Act 2003: ( 1 ) Rape,Sexual Assaults and the jobs ofConsent2004 CrimLR 328;Childs, MaryReview – Sexual Autonomy and Law2001 MLR 309;andCarmody, MoiraSexual Ethical motives and Violence Protection2003 12 SLS 199

Grammar: I will foreground countries that need tightened up separately nevertheless I can non re-write the essay for you. You will necessitate to look at some of the spots I tighten up as illustrations and see if you can better the remainder of the work consequently.

Answering the Question: The work as it stands does non specifically reply the inquiry that was set.You are being asked an nonsubjective inquiry and so to give youRsubjectivesentiment on the result. The length of the work narrows your range to make much reexamine but you should still be confer withing legal theory as respects thenecessity for certain sexual offenses to be punished and whether consent is an appropriate trial. You besides need to develop the substantial jurisprudenceit is good that you have demonstratedcognitionof the legislative act but excessively small attending has been paid to analysis of how the legislative act is implemented. You need to pass less clip on the legislative act and more clip utilizing instance jurisprudence as illustrations of how the legislative act is in world implemented.

Good Luck.

Mark: 32 % ( Fail )

To what extent does accept enable a suspect to avoid liability for offenses under the Sexual Offences Act 2003? To what extent do you see the current jurisprudence as appropriate?

For a sexual offense to happen it is non sufficient to set up merely the actus reus of the sexual offense there must besides be a deficiency of consent on the portion of the plaintiff.

The definition of a sexual offense frequently revolves around consent[ can you believe of illustrations where a sexual offense doesnt involve issues of consent? ]; this is something that must be clearly establishedas bingbetween two people before any sort of sexual act or behavioroccurs. If an person is accused of a sexualoffense, they must demo that they moderately believed consent had been given by the other individual.

Under the Sexual Offences Act 2003( theAct), the non-consensual offenses[ this doesnTs make senseMake you intendthe offenses that do non hold consent as thework forces rea]are detailed in subdivisions 1-4 and theAaNutmeg State[ you need to be precisedo certain the reader is clear which Act you are mentioning tofor illustration by seting in a definition as above ]besides removes the component of consent from many other sexual offenses, so that merely the act itself and the age or other restraints need be proved, such kids under 16 and individuals with a mental upset.[ I think you need tointroducethe capable affair that you are composing aboutWhen did the SOA 2003 come into force? Why did the authorities alteration the jurisprudence? What is the overall construction of theAct(i.e. what type of offenses are covered ; how is it laid out ) ? If you do non make this so the reader who is unfamiliar with SOA 2003 has no thoughtofthe importance of the 2003 Act ]

Establishing non-consensual sexual contact[ the actus reus is the physical act whereas the work forces rea is the mental componentan actus reus can non affect consent because that is a mental componentso the actus reus ofmostsexual offensesis merely holding sexwhatalterations it into being an offense is the absence of consent]with the plaintiff by the suspect proves he committed the actus reus of the offense. In order to be guilty of the sexual offense, it must besides be proved that the suspect had the needed work forces rea, and the negative work forces rea demand is that there must be an absence of sensible belief in consent.

The Sexual Offence Act 2003 seeks to enforce a constructionvitamin Dmodel for steering determination devising on the presence or absence of sexual consent. Firstly consent is definedbyunder s.74- a individual consents if he or she agrees by pick, and has the freedom and capacity to do that pick. Second, it provides under s75 an thorough list of givens associating to accept, these givens exist to assist the prosecution show deficiency of consent ( actus reus ) and deficiency of belief in consent ( work forces rea ) .

Under s75, if theprosecution proveprosecution provesthat any of the specified fortunes listed under that subdivision exist and that the suspect knew of these fortunes, so it is presumed that the plaintiff did non consent and that the suspect did non hold a sensible belief in consent. The suspect can refute this given by bring forthing grounds to the contrary and should he make so so the prosecution must so turn out the issues of deficiency of consent and deficiency of sensible belief in consent beyond sensible uncertainty.

Under s.76 ( 2 ) of the Sexual Offences Act 2003 sets out two fortunes in which an irrebuttable given arises, viz. where the suspect has deliberately deceived the plaintiff as to the nature or intent of the act or has deliberately induced the plaintiff to consent by portraying person known to her.[ My feeling is that this is an country that you can fasten the work up significantly by distilling these paragraphs into a few sentencesalongthe lines of:Consent is given a catch-all definition in s.74 which isQuotation mark from Act. However, the Act goes farther and sets up a two-tiered system of rebuttable and irrebuttable givens in s.75 and s.76. There are limited fortunes in which the jurisprudence imposes an irrebuttable given: knowing misrepresentationand where consent induced by caricature. However, the consequence of the rebuttable givens is merely, in the fortunes listed at that place, to switch the load of cogent evidence of sensible belief to the suspect. I would merely propose that you look at other countries of the work which have tended tobeexcessively worded and see if you can distill them in a similar mode as I have suggested here.It will so give you more infinite to develop some of the points from the literature.]

The fortunes listed under s75 are argued to be excessively restrictive[ by whoyou need to cite your governments where appropriate ]and that the list should be non-exhaustive so that the tribunals can add farther fortunes instead than holding to wait for Parliament to pass[ once moremention? ]. Itcan beisseen that s75 affects the operation of cogent evidence[ Im non certain I understand what you are speaking about here what is the operation of cogent evidencemake you intend switching the load of cogent evidence? ]in footings of both the actus reus and mens rea of colza, what is non clear in the statute law is how demanding the evidentiary load imposed on the defense mechanism will turn out to be[ have there non been any instances on the issue? ]. Evidential givens indicate that there are cases where circumstance is present but where the defense mechanism may be able to demo that the complainant consents.[ Again I am confused as to what you arespeakingabout hereyou need to spread out this point and give illustrationsareyou merely stating that givens are rebuttable? Look at Carmody Article above and Spencer. ]Whatever the criterion of grounds required to refute this given might be[ you should hold answered this by mention to instance jurisprudence by nowit is far excessively obscure and exemplifies that you have non answered the inquiry set ], it is evident that instances where a individual has been given an alcohol, thatwhatthe subdivision does non make is qualify that such a individual can non give valid consent and s75 foliages open the inquiry of what consent is, and in peculiar does non cover those who are voluntarily intoxicated[ the grammar is hapless here and it makes it hard to readit is one large long sentence and I can nonunderstandwhat point it is you are seeking to maKvitamin E.I think you are doing mention to the fact that s.75 leaves some doubt over the consequence of poisoning on consentwhyis this? Is it a good thing? Is it a bad thing? You need to beanalysingthese types of inquiries. Use the articles and any other resources you can happen to develop this point ]

In the instance R V Dougal [ 205 )[ Fix the commendation ]Swansea Crown Court prosecuting advocate ‘s statement that “ bibulous consent is still consent ” demonstrates that the Sexual Offence Act 2003 has non settled the issue of consent laid out in the White Paper because the prosecution was non able to turn out that sexual intercourse had taken topographic point because the adult female could non retrieve[ I think this is a good point here but you need to look at other topical instances in the country: attemptR v. B[ 2006 ] EWCA Crim 2945 ;R v. H ( Karl Anthony )[ 2005 ] EWCA Crim 732 ; Lawson v. Glaves-Smith ( Dawes Executor ) [ 2006 ] EWHC 2865 ;andR v. Taran ( Farid )[ 2006 ] EWCA Crim 1498. These will assist you place issues and develop your essay in this regard.]

If no givens use under s75, so the definition of consent under s74 resumes its cardinal functions, as do the commissariats under s1 ( 2 ) in respect to the rating of the rationality of belief and here the definition of consent is slightly obscure, as it sets out the rule that consent involves pick and waies are to be given to the jury.[ Good Point ]

There is no definition of capacity in the 2003 Act andthe inquiry of capacity to acceptcan be an of import issuein relation to consent for illustrationwhen a plaintiff is voluntarily intoxicated to the point of stupefaction. In R V Bree[ 2007 ] EWCA 256[ 1 ] , it was determined in mention to s 74 of the Sexual Offences Act 2003, that a really intoxicated individual would non hold lost capacity, would non hold consented and the suspect would be guilty ( capable to holding the necessary work forces rea ) . Sir Igor Judge said, “.Tungstentungstenbiddy person who has had a batch to imbibe is in fact accepting to intercourse, so that is what she is making, accepting: every bit, if after taking drink, she is non accepting, so by definition intercourse is taking topographic point without her consent. ”[ What do you believe of thisdetermination? Youdemand to supply analysis.For information expression at a figure of instance remarks inthe diariesfor illustration 2007 ( July ) New Law Journal 157]

The Sexual Offences Act 2003 is comparatively new statute law and the concerns highlighted may be addressed by judicial reading in future instances nevertheless with the ambiguity environing the rule of consent within the Act it is most likely that in instances sing consent that the suspect will be able to avoid liability as the defense mechanism can work this ambiguity with respects to accept to deflect the jury from the cardinal inquiry refering the behavior of the suspect.[ In decisions you need tosummarisethe pointsmadeand supply comparatively unequivocal replies to the inquiry setthis decision fails to make that. You need to summarize what the SOA 2003 says in relation to consent and so supply your appraisal of whether it is sufficient ( informed by academic resources ) ]

Word Count: 971


Open University ( 2006 ) W201 Law: the person and the province,Unit of measurements 21-26 Milton Keynes,The Open University

Victor Tadros,Article:RapeWithoutwithoutConsentOxford2006 OxfordJournal of Legal Surveies(Fall),[ Do you hold a page figure?ever construction your bibliographyentrieslike this ]2006

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