Difference between revisions of "Criminal Law (Xirnium)"
| Line 6: | Line 6: | ||
| − | The physical and fault elements | + | The physical and fault elements, respectively, of this offence are: |
| − | (a) that the defendant sexually penetrated | + | (a) that the defendant sexually penetrated, to any degree whatsoever, a person without his or her consent or that the defendant did not immediately cease sexual penetration of a person not consenting |
| − | (b) that the defendant had the mere intention to sexually penetrate | + | (b) that the defendant had the mere intention to sexually penetrate, to any degree whatsoever, a person or to not immediately cease sexual penetration of a person not consenting |
| − | + | Unusual for a criminal offence in common law jurisdictions, the fault element for rape in Xirnium is that of strict liability. The prosecution is not required to prove that the defendant either had knowledge of the victim’s lack of consent or was reckless as to whether or not the victim was consenting; these are assumed upon mere satisfaction of the physical element of the crime. | |
| Line 23: | Line 23: | ||
'''Defences to the Charge of Rape''' | '''Defences to the Charge of Rape''' | ||
| − | As noted, the prosecution is not required to prove that the defendant had knowledge of the victim’s lack of consent or that he was reckless as to whether or not the victim was consenting. The accused may, however, seek to raise the defence of an honest and reasonable yet mistaken belief in consent. | + | As noted, the prosecution is not required to prove that the defendant had knowledge of the victim’s lack of consent or that he was reckless as to whether or not the victim was consenting. The accused may, however, seek to raise the defence of an honest and reasonable yet mistaken belief in free and voluntary consent. The defence must demonstrate that the mistaken belief in consent was genuinely held at the time. The accused’s subjective state of mind is then tested against a harsh objective standard. |
| − | The | + | The possibility of this defence is unavailable in circumstances where the accused did not take reasonable steps to ascertain that the complainant was consenting or where the accused did not turn his mind to the possibility that the complainant was not consenting (recklessness and wilful blindness). It is also unavailable where the accused’s mistake results in part from intoxication. |
| − | + | A jury will only be allowed to consider whether the accussed had an honest and reasonable but mistaken belief in free and voluntary consent if a trial judge is first satisfied of the sufficiency of evidence produced by the defence supporting the possibility of such a claim, and if none of the circumstances making the defence unavailable are present. | |
| Line 39: | Line 39: | ||
'''Mandatory Jury Directions''' | '''Mandatory Jury Directions''' | ||
| − | If the complainant did not say or do anything to indicate free and voluntary agreement, then | + | If the complainant did not say or do anything to indicate free and voluntary agreement, then this shall normally suffice to demonstrate that there was an absence of free and voluntary consent. Such is also enough to reject the claim that the defendant had an honest and reasonable yet mistaken belief in consent. |
| + | |||
| + | |||
These lists are incomplete. | These lists are incomplete. | ||
Revision as of 05:55, 18 February 2007
The Crime of Rape
The Common Law
Rape is considered a serious crime in the Eternal Republic, the maximum penalty for which is life imprisonment.
The physical and fault elements, respectively, of this offence are:
(a) that the defendant sexually penetrated, to any degree whatsoever, a person without his or her consent or that the defendant did not immediately cease sexual penetration of a person not consenting
(b) that the defendant had the mere intention to sexually penetrate, to any degree whatsoever, a person or to not immediately cease sexual penetration of a person not consenting
Unusual for a criminal offence in common law jurisdictions, the fault element for rape in Xirnium is that of strict liability. The prosecution is not required to prove that the defendant either had knowledge of the victim’s lack of consent or was reckless as to whether or not the victim was consenting; these are assumed upon mere satisfaction of the physical element of the crime.
The Standard of Consent
The common law defines consent as needing to be freely and voluntarily given by a person with the cognitive capacity to give consent.
Defences to the Charge of Rape
As noted, the prosecution is not required to prove that the defendant had knowledge of the victim’s lack of consent or that he was reckless as to whether or not the victim was consenting. The accused may, however, seek to raise the defence of an honest and reasonable yet mistaken belief in free and voluntary consent. The defence must demonstrate that the mistaken belief in consent was genuinely held at the time. The accused’s subjective state of mind is then tested against a harsh objective standard.
The possibility of this defence is unavailable in circumstances where the accused did not take reasonable steps to ascertain that the complainant was consenting or where the accused did not turn his mind to the possibility that the complainant was not consenting (recklessness and wilful blindness). It is also unavailable where the accused’s mistake results in part from intoxication.
A jury will only be allowed to consider whether the accussed had an honest and reasonable but mistaken belief in free and voluntary consent if a trial judge is first satisfied of the sufficiency of evidence produced by the defence supporting the possibility of such a claim, and if none of the circumstances making the defence unavailable are present.
Statutory Provisions
Admissible Evidence
The sexual reputation or disposition of the complainant is not admissible in any court process under any circumstances.
Mandatory Jury Directions
If the complainant did not say or do anything to indicate free and voluntary agreement, then this shall normally suffice to demonstrate that there was an absence of free and voluntary consent. Such is also enough to reject the claim that the defendant had an honest and reasonable yet mistaken belief in consent.
These lists are incomplete.
