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Requirement
Scenario
David has an incurable and deadly disease. Based on medical advice he has received, he knows that his disease is highly contagious and can be transmitted by way of unprotected sexual intercourse. He attends hospital on a weekly basis for medical treatment and whilst in the hospital café, he meets Angela who is a nurse on the children’s ward.
David detests Angela and is particularly jealous of her lifestyle. However, on a night out he inadvertently meets Angela in a nightclub. She has been drinking heavily and agrees to returns to David’s flat. David does not drink because of the medication he is taking. David makes advances towards Angela and not meeting any resistance; he decides not to use a condom and has unprotected sexual intercourse with Angela.
Following this episode Angela contacts the police. She tells them that she woke up in the morning and was told by David that they had slept together. She can’t remember what happened that night and how she arrived at the flat because she was so drunk. However she would never have agreed to sleep with David as she dislikes him. Had she known of his infectious medical condition and that it could be transmitted via unprotected sex, she would never have slept with him. She was later diagnosed with the same disease.
Angela is very vulnerable to infection due to a blood disorder and later dies as a result of the disease.
David in an interview with the police, accepts that Angela was very drunk when he slept with her but as far as he was concerned she was a willing participant. He also believed that Angela was aware of his condition as they had discussed this during his hospital visits. He denies deliberately trying to infect Angela.
Question
Discuss the potential offenses that may arise. Your answer should address the conflicting version of events between Angela and David.
Solution
Facts of the Case
David is suffering from an incurable and deadly disease, so, he cannot indulge in an unprotected sexual intercourse because of that as it will transmit to the other person as well. However, he did exactly the same when he met Angela in a nightclub. She was so drunk that she agreed to go to David’s house event though she hated him. Had she known of his infectious medical condition and that it could be transmitted via unprotected sex, she would never have slept with him. She was later diagnosed with the same disease. In the end, Angela became very vulnerable to infection due to a blood disorder and later dies as a result of the disease.
Therefore, David is now under the scrutiny on account of Angela’s reporting to the police about what could have happened that night. He might undergo and face a series of applicable laws with regards to his actions that led to the illness and eventual death of Angela.
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Potential Offences
It is clear from the incidences that David being in a position of complete knowhow as to what could be the consequences of sexual intercourse between him and Angela. He was not drunk because of the medication, so he possessed all the senses to avoid any such situation to occur. He knew that Angela and he are not in the healthy relationship with each other, so, it was Angela’s lack of being in senses by which she readied to have sex with him, and otherwise, quite clearly, she would not have done that on her part. Yet, after knowing all these facts, David did what he should have easily avoided in order to prevent the most of the unfavorable situation for Angela in the future. So, in view of the offences that he committed, he attracts punishment on the basis of certain applicable laws and provisions.
To start with the arguments, let us first understand, in the backdrop of current scenario, about certain elements that are always seen whenever, some criminal offences as well as sexual offences are being committed. These elements are ‘actus reus’ and ‘mens rea’.
actus reus
The actus reus is defined particularly in criminal law and consists of all the elements with regards to the crime not including the state of mind of the defendant. It consists of conduct, result, and a state of affairs or an omission. In simple words, actus reus indicates the element of criminal responsibility (Ashworth, 2006). In fact, the literal translation of 'actus reus' from the original Latin is ‘guilty act’.
The conduct is the first element which is evaluated in terms of criminality and the examples of conduct crimes are: perjury, theft, rape, possession of drugs or firearm etc. And if we are to apply the concepts of conduct to the present case, David’s conduct at the time of the act was responsible for Angela’s disease and therefore, affected the outcome in a big way. The next element is Result. It is very important because the conduct of David itself may not have been criminal but the result of his conduct certainly was. However, causation must be established in all the result crimes. The examples of result crimes are: assault, ABH, wounding and GBH, murder and manslaughter and criminal damage. Finally, omission is something which occasionally amounts to the actus reus of a crime because it is committed by an omission where there exists a duty imposed by the law. There are three situations in which law enforces the duty on the individuals and these are: creating a dangerous situation and failing to put it right, assumption of responsibility and misconduct in a public life. An omission can also be classed as part of a continuing act ("actus reus", n.d.). Therefore, David’s duty was not to get involved in anything that could create really dangerous situation for Angela. It should have been his natural instinct to foresee and analyze the possible outcome of the sexual intercourse. Instead, he failed to dispense it and as a result Angela got the disease and finally died. However, Angela knew that David was suffering from such an illness and being a nurse, she should have restrained herself from heavy drinking to be in control of her senses. So, David is not completely wrong to say that Angela was a willing participant despite having known everything.
mens rea
next element discussed in the criminal cases is mens rea, which in the laws related to criminality, is concerned with the state of mind of the defendant. In majority of true crimes, mens rea is required to be proven and for that, law has identified three main levels intention, recklessness and negligence. The intention indicates the highest degree of fault of all the levels of mens rea. In general terms as well, a person who intends to commit a crime is always said to be more culpable than the one who is acting recklessly. The intentions are of two types: Direct and Oblique. In direct intent, the defendant embarks on a course of conduct that brings about a desired result. The oblique intent, on the other hand, is somewhat more complex (Perkins, 1939). In it the defendant embarks on a course of conduct to bring about a desired result, knowing that the consequence of his actions will also bring about another result. Here in the present case, the intention of David may have been to get sexual pleasure and the heat of the moment might not have allowed him to think logically and reasonably and therefore got carried away. However, his intention was the only reason that resulted Angela’s death. Also, it can be argued that since intention needs highest degree of fault, it must, therefore, be concerned with the perception of defendant. In addition, intention seems to be a concept which naturally requires a subjective inquiry. It seems somehow wrong to decide what the defendant's intention was by reference to what a reasonable person would have contemplated.
Sexual Offences
The central elements that are involved in this case are rape, consent, intoxication and murder. First of all, let us consider whether the consent on the part of Angela is valid for David to make assertion about his innocence or was her consent a result of circumstances which led them got carried away. The circumstances were because of high intoxication due to drinking.
“Consent”
The section 74 of the Sexual Offences Act 2003, states that a person consents if he/she agrees by choice and has the freedom and capacity to make that choice. Therefore, in this case, the defendant, David got involved in an act which is relevant to consider him an accused because he knew that such circumstances existed in which Angela, the complaint, was completely out of senses. As per the Sexual Offences Act 2003, it is important to consider the reference to the time immediately before the relevant act began is, in the case of an act which is one of a continuous series of sexual activities, a reference to the time immediately before the first sexual activity began (Beres, 2007). Also, the circumstances indicate that David intentionally used the condition of the complainant, Angela, to make her further consented for the relevant act. Moreover, section 78 of the Sexual Offences Act 2003 further says that penetration, touching or any other activity is sexual if a reasonable person would consider that— (a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or (b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.
However, as per the arguments that are supportive for David and be made against Angela’s position are her consent and voluntary intoxication. In view of these arguments, it appears that it was Angela who consented first as she agreed to go to the David’s house which she shouldn’t have done in the first place because of the fact that she despised him. Moreover, she did not seem to resist the advances made by David to have the sexual intercourse. Even though Angela’s consent was because of her being profusely drunk but as a matter of fact, drunken consent is still called a consent. So, the important point that emerges here that has David caused her GHB by transmitting her a lethal disease and if Angela knew that David was suffering from a deadly disease, would she still consent to the unprotected sexual intercourse.
“Rape”
The other main sexual offence that comes into the picture is rape. The section 1 of Sexual Offences Act 2003, lays down the following guidelines as far as rape is concerned:
(1) A person (A) commits an offence if— (a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, (b) B does not consent to the penetration, and (c) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents ("Sexual Offences Act 2003", n.d.).
A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.
In the present scenario, it would not be a valid assertion to make that the action which David took after taking Angela to his house was rape. As per the stated provisions of the above mentioned Sexual Offences Act 2003 , what happened between David and Angela cannot be said that a rape was happened because technically all of the above provisions with regards to the rape were not fully satisfied. However, again the fact that David wasn’t intoxicated, but Angela was, so he was in a complete control of his senses, yet he went ahead and took the advantage of Angela’s condition. She was not in position of resisting what was being done to her. Also, she was the person who completely knew about the disease of David and at the same time, she hated him because of his nature and behavior towards her, yet she agreed to go to his house, so this was the level of her intoxication, otherwise no such thing would have taken place.
In a similar case, R v Bree (2007), after drinking heavily by both the parties, the defendant took the victim back to his house and had sexual intercourse with her. The judge failed to direct the jury that throughout the case, the prosecution retreated from asserting that the victim was unconscious to merely stating that the victim had failed to remember whether she gave consent. As per the reasoning of the case, the conclusions being made were:
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Drunken consent is still consent
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There was not enough evidence to prove beyond reasonable that consent was not given ("R v Bree [2007] | Case Summary | Webstroke Law", 2014).
“Murder”
Murder and manslaughter are two of the offences that constitute homicide.
Manslaughter can be committed in one of three ways:
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Killing with the intent for murder but where a partial defense applies, namely loss of control, diminished responsibility or killing pursuant to a suicide pact.
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Conduct that was grossly negligent given the risk of death, and did kill, is manslaughter ("gross negligence manslaughter"); and
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Conduct taking the form of an unlawful act involving a danger of some harm that resulted in death, is manslaughter ("unlawful and dangerous act manslaughter") ("Homicide; Murder and Manslaughter: Legal Guidance: The Crown Prosecution Service", n.d.).
The arguments with regards to the aspects of murder in the present case of David v Angela, are clear in indicating and proving that David performed an act of gross negligence and behaved in an extremely irresponsible way. As a result of that, Angela became very vulnerable to infection due to a blood disorder and finally died because of the disease. He must not have lost his sense of balance and should have ensured that Angela’s life was protect. So, there is clearly a criminal negligence on his part which amounts to the culpable homicide.
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actus reus. E-lawresources.co.uk. Retrieved 8 May 2016, from http://e-lawresources.co.uk/Actus-reus.php
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Ashworth, A. (2006). Principles of criminal law. Oxford: Oxford University Press.
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Beres, M. (2007). 'Spontaneous' Sexual Consent: An Analysis of Sexual Consent Literature. Feminism & Psychology, 17(1), 93-108. http://dx.doi.org/10.1177/0959353507072914
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Homicide; Murder and Manslaughter: Legal Guidance: The Crown Prosecution Service. Cps.gov.uk. Retrieved 8 May 2016, from http://www.cps.gov.uk/legal/h_to_k/homicide_murder_and_manslaughter/
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Perkins, R. (1939). A Rationale of Mens Rea. Harvard Law Review, 52(6), 905. http://dx.doi.org/10.2307/1334184
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R v Bree [2007] | Case Summary | Webstroke Law. (2014). Webstroke.co.uk. Retrieved 8 May 2016, from https://webstroke.co.uk/law/cases/r-v-bree-2007
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Sexual Offences Act 2003. http://www.legislation.gov.uk/. Retrieved 8 May 2016, from http://www.legislation.gov.uk/ukpga/2003/42/pdfs/ukpga_20030042_en.pdf
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