Suzi is an activist who is associated with Extinction rebellion, a campaign for fighting against climate changes. She is one of the groups' leaders. Bob, an undercover agent is working with Suzi on her projects who she admires a lot. One fine day, they were having their meals together from where they decided to go to Suzi’s flat. Both of them were highly intoxicated as they had drinks at the restaurant and at her place as well. Suzi told Bob that she loves him and want to consummate their relationship provided Bob uses adequate protection. Bob lied to Suzi of having undergone a vasectomy surgery and that she shouldn’t worry about the implications of the consummation.
The next day, Suzi learns about Bob's secret of being an undercover agent and confronted him at a pub, where Bob was having drinks with Jeremy, his friend. On being asked, not only Bob accepted his secret but also told Suzi that he lied about his surgery. Filled up in a rage, Suzi picked up a pint glass, breaks it and with force moves to strike Bob. The glass slipped from her hand and hit Jeremy, causing him minor injuries on his face. The police arrested Suzi and Bob on suspicion of rape.
Is Suzi liable for any wrongful act?
Is Bob liable for rape?
common law, sexual offences act, 2003, offences against the person act, 1861.
Suzi may be liable for causing injury or wounding as per section 20 of Offences Against the Persons Act, 1861 to Jeremy but can take self-defence of hurt due to provocation. Bob may be liable for rape under section 1 of the Sexual Offences Act, 2003 but can take a defence of consent.
Since the criminal law of the UK is an un-codified law, the criminal law of the UK is based on common law. For criminal activities, one has to prove beyond reasonable doubt about the act done but for any tortuous liability, the preponderance of the evidence suffices. There is no definitive definition for injury or hurt but under common law, it means any person who causes harm to someone's body, or mind or his reputation of property is termed to have caused an injury. For causing hurt, one must have caused some pain to the other person's body. What Suzi did to Jeremy, would fall under the tortuous definition of injury. She caused injury to his face by striking him with the pointed edge of the bottle.
Section 1 of the Sexual Offences Act, 2003 (SOA) states that a person is liable for rape if he intentionally penetrates into the vagina, anus or mouth of the other person with his penis, where the other person does not consent too to have any sexual relationship with the former person, or where the facts of the case justify the fact that a person has committed such an offence. Therefore, judging by the given facts, Bob, by deception lied to Suzi of having undergone surgery in order to lure her to consummate their relationship, hence he must be liable of rape under the given act.
For someone to cause injury, there has been two elements present- actus reus and mens rea. Actus reus implies that when an act is committed by a person physically and mens rea means that when the mental element is present in a person to cause some harm to the other. For a person to be convicted under injury should prove these two elements. Since Suzi's act caused minor injuries to Jeremy, therefore she can be prosecuted under this section. One would say that there was no mental element present in her to injure Jeremy, but the mental element was present for Bob, whom she wanted to strike with the bottle. It was unintentional that it hit Jeremy, but that does not protect her under the eyes of the law.
Similarly for Bob to be convicted under SOA, the elements of rape that is a penetration of the penis into someone's vagina has to be there. Section 74 of SOA states that if a person has consented to such an act by being under full knowledge of it and also being competent, then that would not amount to rape. Since in the given case the consent was achieved via deception, that consent shall not amount to that mentioned under section 74. A very famous case of UK, Jason Lawrence case is very similar to the given problem. In this case, Jason was a womanizer and had sexual intercourse with many of the ladies by lying of having undergone vasectomy surgery. This in result made them pregnant and therefore his case came into light when one of such women brought a case of rape against him. The Court of Appeals held that section 74 which talks about consent means a non-fraudulent consent. The consent which Jason's counsellor is talking about was received by deception and therefore he is liable of rape under the said act (Lowbridge, 2019).
The available defence in front of Suzi is of private defence. Under common law, if an act of a person is done under rape, or in order to protect himself then that is treated as a defence. Like A hit B with his car. A was under the influence of alcohol when he hit B. A can take a defence of being under intoxication when he hit B, provided if he could prove that the intoxication was not self-administered. This defence does not acquit the accused from the charges but only lessens the severity of the penalty.
The defence of consent is the adequate defence the Bob can take. He can also implicate the charges of culpable homicide not amounting to murder which under English law is termed as manslaughter. Under section 74 of the SOA act, if the accused had the consent of the other party whom he had sexual intercourse with, then the other party cannot take a plea of being raped. The doctrine of transferred malice states that if the offence which was implicated on one, accidentally caused harm to the another then the accused cannot take the defence of having caused unintentional harm.
Suzi can take a plea that her action at the pub as a result of rage and disgust she had which provoked her to injure Bob. It was sheer provocation as per section 3 as per the Homicide Act, 1957 that lead to this act of hers and that she can take a plea of defence by provocation. In a very famous UK case R v Morgan [(2000) 4 All ER 289], it was held that where an assault is implicated on the other person, then the accused can take a defence of assault by provocation. This defence does not frees the accused from the charges but decreases the severity of the penalty.
Bob can plea for having the consent of Suzi and that she wanted to cause harm to him by striking him with the pointed bottle. Section 74 of the SOA act gives this benefit to the offender that if the sexual intercourse is done by consent of the other party, then that party cannot convict the accused of rape. A famous case R v Latimer (1886) 17 QBD 359 held that the doctrine of transferred malice could be applicable apart from the cases of murders too.
As per the above contentions given, Suzi and Bob can be convicted under the legal laws of England and that Bob has committed rape by lying to Suzi about his condition and that Suzi is liable for causing injury to Jeremy.
R v Morgan [(2000) 4 All ER 289
R v Latimer (1886) 17 QBD 359
Jason Lawrence case 2020.
Lowbridge, C. (2019). Jason Lawrance appeals against vasectomy lie rape convictions. Retrieved from https://www.bbc.com/news/uk-england-leicestershire-49734484
Manta, I. (2019). U.K. Trial Court: Lying About Vasectomy Negates Consent to Sex. Retrieved from https://reason.com/2019/09/25/u-k-trial-court-lying-about-vasectomy-negates-consent-to-sex/
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