Sexual Offences – Skelton Structure for Approaching Problem Questions
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1. RAPE
• On the facts provided, X may be charged with rape contrary to s1 Sexual Offences Act 2004.
o This section provides that a person is guilty of rape if: “(a) he intentionally penetrates the vagina,
anus or mouth of another person (A) with his penis: (b) B does not consent to the penetration and
(c) does not reasonably believe that B consents”.
(a) Actus reus (penetration with the penis + lack of consent)
• In terms of the AR, the prosecution would first have to prove that D had penetrated the vagina, anus
or mouth of another person with his penis.
o Full sexual intercourse need to take place for rape to occur; the slightest degree of penetration
of the vagina, anus or mouth with the penis suffices (Hughes).
o If a sexual partner revokes consent during penetration and the other, aware of this, does not
withdraw within a reasonable amount of time, then this will constitute rape (Kaitamaki) (s79(2)).
▪ [APPLY].
• The second element of AR to be established is that V did not consent to the penetration. Section 74
now provides a statutory definition of consent.
o This provides that “a person consents if he agrees by choice, and has the freedom and capacity to
make that choice”.
• There are three ways in which consent can be shown.
1. conclusive presumptions (s76)
2. evidential (s75) presumptions and (3)
3. agreeing by choice and having the freedom/capacity to make that choice (s74).
a) Conclusive presumptions
o The jury will be entitled to conclusively presume that V was not consenting if the prosecution can
prove that, in order to have sexual intercourse, the defendant:
(i) Intentionally induced the “consent” impersonating a person known personally to the victim
(Elbekkay)
(ii) Intentionally deceived the victim as to the nature or purpose of the penetration (Flattery;
Green; Williams).
b) Evidential presumptions
o If the prosecution is unable to prove the conclusive presumptions in s76 they will seek to prove
the evidential presumption in s75. These are:
a. Violence or threat thereof against V; or
b. Another person
c. V was, and D was not unlawfully detained
d. V was alssep/unconscious
e. V cannot communicate to D due to disability
f. V is intoxicated without V’s consent
o Under s76 if the prosecution can prove that D did the relevant act in any of the 6 circumstances
and that he knew of the circumstance, it will be presumed that there was no consent and that he
lacked a reasonable belief in consent.
_________________________________________________________________________________
1. RAPE
• On the facts provided, X may be charged with rape contrary to s1 Sexual Offences Act 2004.
o This section provides that a person is guilty of rape if: “(a) he intentionally penetrates the vagina,
anus or mouth of another person (A) with his penis: (b) B does not consent to the penetration and
(c) does not reasonably believe that B consents”.
(a) Actus reus (penetration with the penis + lack of consent)
• In terms of the AR, the prosecution would first have to prove that D had penetrated the vagina, anus
or mouth of another person with his penis.
o Full sexual intercourse need to take place for rape to occur; the slightest degree of penetration
of the vagina, anus or mouth with the penis suffices (Hughes).
o If a sexual partner revokes consent during penetration and the other, aware of this, does not
withdraw within a reasonable amount of time, then this will constitute rape (Kaitamaki) (s79(2)).
▪ [APPLY].
• The second element of AR to be established is that V did not consent to the penetration. Section 74
now provides a statutory definition of consent.
o This provides that “a person consents if he agrees by choice, and has the freedom and capacity to
make that choice”.
• There are three ways in which consent can be shown.
1. conclusive presumptions (s76)
2. evidential (s75) presumptions and (3)
3. agreeing by choice and having the freedom/capacity to make that choice (s74).
a) Conclusive presumptions
o The jury will be entitled to conclusively presume that V was not consenting if the prosecution can
prove that, in order to have sexual intercourse, the defendant:
(i) Intentionally induced the “consent” impersonating a person known personally to the victim
(Elbekkay)
(ii) Intentionally deceived the victim as to the nature or purpose of the penetration (Flattery;
Green; Williams).
b) Evidential presumptions
o If the prosecution is unable to prove the conclusive presumptions in s76 they will seek to prove
the evidential presumption in s75. These are:
a. Violence or threat thereof against V; or
b. Another person
c. V was, and D was not unlawfully detained
d. V was alssep/unconscious
e. V cannot communicate to D due to disability
f. V is intoxicated without V’s consent
o Under s76 if the prosecution can prove that D did the relevant act in any of the 6 circumstances
and that he knew of the circumstance, it will be presumed that there was no consent and that he
lacked a reasonable belief in consent.
