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UNIVERSITY OF GUYANA

FACULTY OF SOCIAL SCIENCES


DEPARTMENT OF LAW

Course : Criminal law II

Question 15
Members: Nakisha Bookie
: Christal Amsterdam
: Josephine Tapp
Lecturer : Ms. Alexis Downes-Amsterdam
Discuss Criminal Liability of the following Situations.
i. Amy aged 18 was Eric’s pupil at the university and agreed to sexual intercourse
after Eric had said he would help her with her work.
In light of the aforementioned scenario the issues arising would be whether the consensual
intercourse between Amy and Eric was lawful or whether it would amount to Eric being
liable for Rape.
According to the Laws of Guyana, Sexual offences act, Cap 8:03, A person commits the
offence of rape if:
a) The accused-
i. Engages in sexual Penetration with another Person; or
ii. Causes the complainant to engage in sexual Penetration with a third Person;
b) The complainant does not consent to the Penetration; and
c) The accused does not reasonably believe that the complainant consents.
Based on this definition, it could be said that the sexual intercourse was a lawful act
between Eric and Amy as it was clearly stated that Amy agreed to the sexual intercourse.
However to establish whether Amy’s consent was genuine, one must be guided by the
definition of the word consent. According to the Blacks law dictionary consent is a
concurrence of wills. Express consent is that which is directly given either said or in writing.
It was established in the case of Cowen v Paddock that consent is an act of reason
accompanied with deliberation, the mind weighing as in a balance the good or evil on each
side.
Consent can be given by word or overt action. The person must agree by choice and has
the freedom and capacity to make that choice. As such, the offence of rape requires that
Amy either did not consent to the sexual intercourse, or considered as not having the
capacity to consent or is under the age of consent. In terms of mental capacity to consent
we can assume that Amy, who is in university, has the capacity to understand the nature
and quality of the act and to consent to it. Further, in Guyana, it was established that the
age of consent is 16 under the Laws of Guyana, Sexual Offences act, Cap 8:03 s 11.
Therefore, in the fact pattern above, Amy, who is 18 years old would be considered to be
above the age of consent. Under the Sexual offences act, s 18, (1) “A person commits the
offence of sexual activity with a child under eighteen years of age by abusing a position of
trust in relation to that child if –
a) The accused
i. Engages in sexual activity with the complainant
ii. causes the complainant to engage in sexual activity with a third party
iii. causes the complainant to perform sexual acts including causing the complainant
to masturbate;”
Under section 18 of the sexual offences act, it is stated that a person commits the
offence of sexual activity with a child under eighteen years of age by abusing a position of
trust in relation to that child if they i) engage in sexual activity, ii) are in a position of trust
iii) can be reasonably expected to know the circumstances. Under Section 19 (1), it is stated
that a position of trust in relation to the accused and the complainant would include where
“the accused looks after persons who are receiving education at an educational institution
(whether in the role of teacher or in another role) and the complainant is receiving, and the
accused is not receiving, education at that institution;” However, although Eric can be seen
to have abused his position of trust under this definition, the act specifically states “under”
the age of 18 and, as such, since Amy is 18 years of age, Eric would not be guilty of “sexual
activity with a child under eighteen years of age”, thus Amy’s consent can be considered as
a lawful one. In addition we must also examine the nature of her consent. In R v
Williams(1923), the defendant, a singing coach, told one of his pupils that he was
performing an act to open her air passages to improve her singing. In fact he was having
sexual intercourse with her. It was held that the consent must be genuine and not tainted
by fear, force or fraud and, as such, her consent was vitiated by fraud as to the nature and
quality of the act. Amy was not put in fear, forced nor was she fraudulently convinced to
engage in sexual intercourse with Eric. Fraud for this purpose is defined in a “narrow sense”
n R v Linekar [1995], in which the defendant agreed to pay for sexual intercourse with a
prostitute but refused to pay afterward. It was held that this did not amount to fraud. Therefore,
even if Eric does not help her with her schoolwork as promised, he would still not have
fraudulently convinced her to have sex with him. Therefore, Eric cannot reasonably be said to
have raped Amy in light of the foregoing.
ii. Betty Eric’s wife told him to stop after sexual intercourse had begun. Erick ignored
her request.
(ii) This scenario will entail the discussion of Eric's criminal liability after continuing to have sex
with his wife after she withdrew her consent. The issues that will be addressed are firstly
whether Eric would be criminally liable for rape of Betty after she withdrew her consent and he
continued to have sexual intercourse with her and whether Eric, being her husband can rape his
wife
In an attempt to address the issues one must first be cognisant of when a sexual offence is
committed. A sexual offence is committed when someone unlawfully has sexual intercourse
with a woman without consent by fear, force or fraud. It requires penile penetration of a victim
who is a female at birth. The sexual offences act in Guyana now includes penetration not
necessarily penile and it also includes causing the victim to engage in sexual intercourse with a
third party.
In the case of Eric and his wife, they had initiated consensual sexual intercourse. However, in
the midst of the proceedings Eric's wife withdrew her consent. This therefore means that when
Eric ignored his wife’s withdrawal and continued to have sex with his wife, he was no longer
doing so under the consensual umbrella thus automatically falling with in the ambits of rape.
The genesis in this situations is that; the moment consent was withdrawn any penetration after
that withdrawal will amount to the actus reus of rape . In R v Kaitamaki upon which this
principle stands the accused was charged with rape and his defense was that at the time when
he penetrated, the woman had consented. However he did not withdraw when he realized that
she was not consenting. The courts held that the actus reus of rape was a continuing act and so
when Kaitamaki realized that his victim did not consent he therefore formed the necessary
mens rea. It can therefore be established that Eric’s action in choosing to ignore Betty’s
withdrawal will find him criminally culpable for the rape of Betty as it was ascertained that any
penetration after the withdraw of his wife’s Betty initial consent would be deemed unlawful
and therefore Eric would have formed the necessary mens reas .
The second issue at hand is whether Eric being betty’s husband can rape his wife Betty. This
issue is a very controversial issue in law. However, it is possible in law for a husband to rape his
wife. While initially the law was that, as long as couple is married and are cohabiting it was
implied that consent to all sexual activity was given. In R v Clarke [1949] the wife had obtained
a separation order containing a non-cohabitation order from a magistrates' court. It was
decided he could be charged with Rape as the wife had already obtained a separation order
proving the relationship was broken. Thus Intercourse was revoked by a process of Law, viz the
court order. In R v O'Brien [1974] the wife was granted a decree nisi (an order by the court of
law stating the date on which a marriage will end unless a good reason not to grant a divorce is
produced. It is a document which says the court sees no reason why you cannot be divorced).
After this the husband raped her. It was held that the decree nisi terminated the consent.
Therefore the husband was guilty of rape. Both R v Clarke and R v O’Brien were clear cut cases
which shows upon which a man could have been Criminally liable for the rape of his wife. It was
in R v R [1991] where the defendant was charged with the attempted rape of his wife. At the
time of the offence the couple had separated although no formal legal separation existed and
neither party had partitioned for a divorce. The house of lords overturned the matrimonial
exception to rape. His conviction for rape was upheld.
Lord Keith in this cases further stated that while Hale's proposition involves that by
marriage a wife gives her irrevocable consent to sexual intercourse with her husband under
all circumstances and irrespective of the state of her health or how she happens to be
feeling at the time. In modern times any reasonable person must regard that conception as
quite unacceptable. This was the reason that the decision was then reversed. Based on the
Law established Eric can rape his wife and his conviction of rape will be upheld.
In keeping with the judgement of R v R,even though the fact pattern did not discern whether or
not the couple was cohabitating, Eric would be liable for rape despite the fact that the victim is
his wife. It was pointed out by Lord Keith that any reasonable man cannot possibly expect his
wife to consent to sexual intercourse despite “her state of health or how she happens to be
feeling at the time” just because she is his wife should mean that consent is given at all times.
Thus Erick would be Liable for the Rape of his wife Betty as she retracted her consent which is a
clear indication that her state of mind had changed.

iii. Cindy forced Erick at gun point to have sexual Intercourse with her.
The issues to be considered is whether Eric’s consent was genuine, whether Cindy would be
liable for Rape and whether Cindys action of holding Erick at gun point would constitute an
assault.
From the foregoing scenario it was expressly stated that Eric was forced to have sexual
intercourse with Cindy at gunpoint. Immediately one can infer from the foregoing that that the
sexual intercourse was not consensual as defined under the sexual offenses act Chapter 8:03
which states that ‘consent means words or overt actions by a person who is competent to give
informed consent indicating a freely a freely given agreement to have sexual intercourse or
other sexual contact.’ In the case of R v Olugboja (1981) the defendant threatened to keep a
girl overnight. He made no explicit threat of violence. She did not resist sexual intercourse.
However the courts held that she had not given genuine consent but had merely submitted
under the pressure of his threat to keep her overnight. Thus it can be said Eric’s consent to
sexual intercourse with Cindy was not consented to willingly as he was held at gunpoint to
partake in the act, which may constitute Rape as consent must be genuine or freely consent to.
However at common law rape is the unlawful sexual intercourse with a woman without force
fear or fraud. The consent must be genuine. In R v Molone (1998) the victim was a sixteen year
old girl and her friend the appellant went out with some other friends but she had too much to
drink and was unable to walk. Her friends took her home. One of the friends went up to her
bedroom while the others were downstairs upon which the victim became aware of his
presence before climbing on top of her inserting his penis into her vagina. She protested. The
appellant was convicted of rape. The court of appeal stated that there must be some evidence
of the lack of consent. Section 74 of the sexual offences act when looking at the capacity to give
consent, a drunken consent could still be consent however it was a question of whether the
particular individual had the capacity to consent in the circumstances. Thus the consent given
was not one of a genuine nature as the victim was no in the capacity to give a true
representation of herself.
Section 75 of the sexual offences Act provides for the rebuttable presumption that the
victim did not consent and that the defendant had the required mens rea,where;
● The victim was subjected to violence or third person
● The victim was unlawfully detained
● The victim was asleep or unconscious while the offence was being committed
● Due to physical disability the victim was unable to communicate their consent
● The victim was given a substance which cause him to be stupefied at the time of the
attack
In the given scenario it can be seen that Eric’s consent was not one of a genuine nature.

However though it was established that Erick’s consent was one that was forced. What may
constitute rape if the roles were reversed, is not so under the common Law. Under common
law rape cannot be committed by a female against a male or a person who was male at birth.
Thus Cindy may not be held accountable for offence of rape. Juxtapose she may be held
accountable for assault more specifically Sexual assault. In the case of Collins V Willcock (1984)
Lord Goff stated that “ an assault can be defined as an act which causes another to apprehend
the infliction of immediate personal force of his person” it was further posited in Kodilini’s
common wealth Caribbean that ‘an assault is a direct threat made by the defendant to the
plaintiff, the effect of which is to put plaintiff in reasonable fear or apprehension of immediate
physical contact his person’ this can be to have been the state of affairs of Eric when he
consented to the sexual intercourse. The offence of assault is measured by the reasonable man
approach and had any reasonable man had a gun pointed at them it would automatically cause
that person to apprehend immediate violence. In the case of Smith Chief Superintendent,
working Police Station (1983) where the victim was in her bedroom and became terrified when
she saw the defendant standing in her garden staring at her through her window was found
liable for assault on the grounds that the victim feared the infliction of immediate force though
she was inside. The Court of Appeal held; it was clearly a situation where on the basis of the
fear which was instilled in her was that she did not know what the defendant would do next,
but, that, whatever he might be going to do next, and sufficiently immediately for the purpose
of the offence was something of a violent nature, it was inferred that her state of mind was not
only that of terror, which they did find but terror of some immediate violence. As in the case of
Eric it can be inferred that that he was exposed to the apprehension of immediate personal
violence when Cindy pointed it at him which would in turn reflect the reaction of any
reasonable man thus submitting under the pressure of fear and consenting to the sexual
intercourse. More so Cindy may be liable for sexual Assault by virtue of Chapter 8:03 section 4
of the sexual offences act a person may commit sexual assault if the accused touches another
person ‘the complainant’ to touch the accused in a sexual way, where the complainant does
not consent to the touching or the act which would constitute sexual assault. thus in light of the
foregoing Cindy would be liable for sexual assault as Cindy pointing a cause him to apprehend
fear in turn forcing him to have sexual intercourse.
iv. Eric agreed to give dolly, aged 15 a lift home. On the journey they decided to have
sexual intercourse and did so.
In this fact pattern, the main issues to addressed are: 1. whether Eric is liable for rape, which would entail
a discussion on 2. whether or not Dolly had consented/was capable of consenting to the sexual
intercourse.
As stated previously,
First we must address the issue of consent . Consent is general a defense used to show the conduct done to
the individual was lawful and thereby not against the individuals will. However it is a general rule that
consent cannot cover violence likely to or sufficient to cause actual bodily harm. This is because it is not
in the interest of society that people should cause or try to cause actual bodily harm.
Consent however is the major component that would be able to distinguish between consensual sexual
intercourse and rape . Based on the fact pattern they decided to have sex . Thus therefore means that the
sexual relations were consensual . However the question still remains whether or not her consent is valid
and would Eric be liable for rape .
In law there are some rebuttable presumptions to consent . Some of these arise where violence or threat
was used , the complainant was asleep , physical disability caused the victim not to be able to
communication consent and the complainant had been given a substance which stupefies or overpowers
them at the time of the attack . While these are some of the rebuttable presumption there is also the
irrebuttable presumption of the deception of nature and purpose of the act like in R v Williams 1923 and
impersonation. In this issue the irrbuttable presumptions of age will be the main focus . Within the laws
of Guyana , Sexual offence act There is a presumption against capacity to consent if the victim is under
16 years of age as stated in Laws of Guyana, Sexual offences act, Sections 10-21. Rape of a child under
16 years is defined under Section 10 which states “A person commits the offence ' of rape of a child under
sixteen years of age’ if the accused - (a) engages in sexual penetration with the complainant or (b) causes
the complainant to engage in sexual penetration with a third party. (2) It is irrelevant whether at the time
of the penetration the accused believed the complainant to be 16 years of age or older. With this it is safe
to say that even though Dolly had consented to the sexual intercourse , her consent is not valid within the
law and therefore Eric can be liable for rape. The only defense that may arise in this scenario is that of the
close in age defense. This is available to persons who may be charged with this offence so as to
accommodate teenage sexual activity. This is defined under sections 14 and 15 of the Sexual Offences
Act, Laws of Guyana with Section 15 dealing specifically with complainants ages 14-15. This states
“Where an accused is charged with an offence under sections 10, 1'J., 12 or 13 in respect of a complainant
who is fourteen years of age or over but under sixteen years of age, it is a defence that the complainant
consented to the activity that forms the subject-matter of the charge if the accused - is less than four years
older than the complainant; and is not in a position of trust or authority towards the complainant”
However, even though Eric's age is not motioned in the scenario it would be safe to assume that if Eric
was older than 19 years old then the defense would not be available to him but if he was a four years older
or not in a position of trust then he would not be liable for rape .

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