Legal Methods and Systems in Criminology

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Table of Contents

Getting Going
Relevant Materials
Defendant Case
Prosecutors Case
References
Footnotes

Getting Going

In writing this research paper the first thing that I needed to determine is the branch of law that this case scenario pertained to, which I determined to be criminal law. In general terms, there are two ways in which the various forms of law can be divided: procedural law and substantive law¹. Procedural law is concerned with the legal formalities that dictate the process of legal cases and the role of the court in enforcing that code. This element of law can be determined to be present in this case since the court will be required to adjudicate on issues of human rights and privacy that the appellant claims to have been violated. On the other hand, substantive law involves the type of laws that describes the specific nature of legal matters that are enforceable under the law which therefore encompass all forms of rights and obligations that a person might have a basis to claim. Under this type of law, there are three branches of law namely: criminal law, tort law, and contract law². The branch of law that will be applicable in this case scenario as we shall later find out is criminal law.

After having established that, the next step that I needed to undertake was to identify the major issues of law that are central to this case scenario. Three issues are central to this case of R v. Ryan; issues pertaining to sexual offenses in general, the law pertaining to

the rape of minors, and the concepts of men’s rea and actus rea. Because this is basically a case of rape the applicable law is the Sexual Offences Act 2003, and more specifically as outlined in section 5 and section 13. This much, what the court needs to determine is whether the applicable law was appropriately applied in sentencing the defendant in the first place, and more importantly whether the appellant grounds for appeal on the judgment are valid.

The next step after having determined the legal issues that are required to be researched is to cross-check the facts of the case against the applicable law for purposes of determining whether the defendant was rightly sentenced. This exercise required me to peruse through all relevant literature written on sexual offenses laws, rape of minors as well as what the European Convention on human rights says about child human rights. This meant that I had to conduct a literature search for any written material or all of the issues that I had determined to be central to this case. Because of the vast nature of literature that is potentially written on sexual offenses, child human rights, and laws on the rape of minors, I had to devise a literature search plan that will generate for me the most concise results of what I was specifically looking for. This required me to come up with keywords for searching the literature resources that I needed to have in order to tackle this essay. Because I had already determined the central issues that needed to be investigated in this paper formulating keywords was not very challenging.

First I wrote down the major keywords that I needed to use in order to identify the general literature that I needed; these were “laws on the rape of minors”, “men’s rea”, “actus rea”, “Sexual Offences Act 2003”, “European Convention on Human Rights”, “consensual sex between minors” and “precedent court rulings on laws involving minors”.

Relevant Materials

I relied on several search engines in my literature search of the relevant resource materials that I needed namely; google, Wiley online library and google e-book search engines. My initial search on google using any of these keywords gave me hundred of thousands of hits on relevant resource materials that I could potentially use in writing this research paper. However, Wiley online library which is one of the few select online databases with the best well-written refereed journal articles was able to give me a less number of relevant resources. The biggest challenge I had in tracing the relevant resources was while using the google search engine which was giving me hundreds of thousands of hits on all of the categories, for instance, the “laws on the rape of minors” keyword gave me 33,200,000 hits of articles written on the subject. For this reason, I had to refine my search by customizing the keywords I was using to search the resources this involved adding more relevant keywords in order to narrow down on my results without overlooking crucial articles with the information that I needed.

Eventually, I settled on “laws on the rape of minors and precedent rulings on cases”, even though I still got more than 10000 hits with google I was able to get relevant resource materials that I could use in writing the essay by just reviewing several of the resources. Next stop I tried a search with Wiley online library which is one of the subscribed databases with the most recent publications on various disciplines. Luckily for me, Wiley does not have hundreds of thousands of potential resource materials to check from, for this reason, any keyword that I used to search relevant literature just gave me 2000 hits at most. The search engine for Wiley online library is very much like that of Google and usually highlights all articles with the keywords entered, so to find the most relevant publications on this subject one needs to enter as many relevant keywords as necessary and run a search. The generated resource material that appears at the top of the page are the ones with the best fit, it even has a feature that lets you rank the results based on the best match which was very handy during this process. By the end of my search for resource materials, I was able to zero in on four articles from the google search engine that I identified as most relevant and two journal articles from Wiley online library that were most pertinent in writing of this essay, all of which appears on the bibliography page.

Defendant Case

The 2003 Sexual Offences Act redefines what constitutes rape primarily on two major grounds; intentional penetration of another person under circumstances where there is no consent. Under this Act, a person is guilty of an offense based on three of these circumstances; if one “intentionally penetrates the vagina, anus or mouth of another person”, where a person “B does not consent to the penetration” under circumstances that person “A does not reasonably believe that B consents”³. These conditions pretty much summarize what the whole Act regards to be crimes of rape, so on the face of it would appear that Thomas is not guilty of a rape offense since there was consent during the sexual intercourse with Smith. But there are two other elements to be considered in this case; one regards what the Act says regarding sex with a child under the age of 13 years in section 5 and whether Thomas in engaging in sex with Smith “reasonably believed” that she was consenting, what would ideally constitute men’s rea aspect of the case.

Based on these two factors we can reliably determine with good judgment whether Thomas was justly sentenced by the court. Section 5 of the Sexual Offences Act 2003 “makes it an offense for a person intentionally to penetrate with his penis the vagina, anus or mouth of a child under the age of 13. Whether or not the child consented to this act is irrelevant”⁴. We can probably add, only if the defendant reliably knew of the child’s age, which is the factor that this Act does not expressly elaborate on. So strictly speaking and in disregard to all other factors that existed at the time under the circumstances, Thomas is guilty as charged. But we all know that the circumstances of what eventually come to be regarded by the prosecutor as rape were not as straight forwards like this, and it is on this basis that Thomas could argue that the court erred in prosecuting him from this strict standpoint of legal perspective.

Thus, the appellant has a basis of raising the issue of strict liability as a ground for appeal since it is incompatible with the European Convention on Human rights which states partly on article 6 that there should be “presumption of innocence” which ceases to be when the concept of strict liability is applied as is the case⁵. Besides, there are mitigating elements on this case that would have ideally required the prosecutor to charge the defendant on the less serious crimes under the ambit of section 13. This is because there are two elements under the circumstances that would shift the nature of crime from strictly being described as the rape of a child.

These are one, the fact that the sexual intercourse was consensual presumably between teenagers above 13 years old, and two the defendant at the time believed the so-called victim to be aged above 14 years. Thus, for the prosecutor to insist otherwise they must at least prove the men’s rea and actus rea elements of the case; men’s rea as we shall see would be objectively impossible to prove. Nevertheless, as it is the custom the prosecutor has the responsibility of the burden of proof in this case, and to shift the burden of truth would be unfortunate misconstruction of justice.

Proof of men’s rea; simply states that “there must be more than merely preparatory acts” such as intent before rape charges can be preferred⁶. Another related legal principle that should be applied to determine the circumstances of the case is actus reus which means “guilty act”⁷. This principle of actus rea is applied together with men’s rea and attempts to describe the “physical elements of committing a crime” which is present in this case⁸. This is because the principle of men’s rea is based on the logic that the accused knew that what he was planning on the undertaking was wrong and illegal, implying that Thomas knew of the actual age of Smith. Hence, for the State to prove that rape occurred under the ambit of section 5 these two important conditions must be certified. While the prosecutor has enough evidence on actus rea, proving men’s rea will be a difficulty as it would require showing that the defendant had reasonable reasons to believe that the victim was not aged above 13 years at the time of the crime. Because this cannot be accurately determined to be beyond a reasonable doubt, the prosecutor could not have possibly obtained the necessary level of evidence required to sentence the accused in the first place or even sustain the judgment in this case. Indeed in a very similar case of Gv. R & ANR 2003, where the appellant was appealing on an earlier conviction for raping a minor who was below 13 years when he believed her to be 15 years at the time, the court in its rulings held in part that;

“It was unlawful for the prosecutor to continue to prosecute G under section 5 given his acceptance of the basis of G’s plea, namely that the complainant had consented to intercourse. As the offense fell properly within the ambit of s. 13, G’s conviction of rape under s. 5 was disproportionate and incompatible with his rights under art. 8”⁹.

Thus the court did clarify one important issue which requires the prosecutor to exercise fair and objective analysis of the circumstances in such a manner that is compatible with universal human rights as outlined in the European Convention on Human Rights. In this case, this due diligence is not found to have been undertaken and thus we can conclude that both Thomas human rights were contravened as well as his right to “presumption of innocence”¹⁰.

Prosecutors Case

For the prosecutor to effectively establish Thomas to be guilty, they need to establish two aspects of the case namely men’s rea and actus rea. As we have so far determined actus rea would not be a problem for the prosecutor to prove in this case since there is evidence of sexual intercourse, this much the prosecutor has a case against the defendant. Nevertheless, the prosecutor is limited in terms of proving the men’s rea aspect of the case; this is unless the prosecutor is able to circumvent the requirement of proving the fact that the defendant had the foreknowledge of knowing the accused was not aged beyond 13 years. The only recourse that the prosecutor has as far as this case is concerned are two; to charge the defendant under section 5 of the Sexual Offences Act or charge him under the lesser offense of sexual offenses contained under section 13.

The prosecutor is currently favored by the present Sexual Offences Act 2003 which has drastically shifted the issue of consent under certain circumstances to presume that the defendant was aware that consent was not obtained from the victim¹¹. Section 75 of the Sexual Offences Act outlines the “Evidential presumptions about consent”; under this section “the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented”¹². Besides, after the enactment of the new law on Sexual Offences Act, prosecutors are no longer required to acquit a suspect based on the premise of a “mistaken and honest belief in consent” as was previously the case based on the precedent of Morgan v. DPP, 1976¹³. This means that the appellant still has no grounds to rely on his mistaken belief on victim ages as his defense.

Thus, on this basis, the prosecutor can strike out one of the mitigating factors that the defendant was relying on as his defense; this amounts to shifting the burden of proof to the defendant which makes it harder for him to prove the absence of men’s rea. However, even then the prosecutor would still need to ensure that the circumstances of the rape contained any of the six conditions that section 75 requires to be certified for this shift on the burden of proof to be allowed. Because of this requirement, it would be tricky for the prosecutor to pursue charges under section 5 since there is no presence of any of the six conditions outlined in section 75.

So this much, the prosecutor I would say has a 50% chance of success if they wish to prove the element of men’s rea in the crime, but as we have so far determined in this case an important element of the case has to do with the defendant presumption of victim’s age at the time of the crime and not so much to do with consent per se. Notable to mention in this case is the fact that legally children under the age of 13 are regarded to be incapable of consenting to any form of consensual intercourse, hence the issue of consent is inherently tied with the age of the victim¹⁴. This is a fact, which makes it impossible for the defendant to cite consent in his defense even though it does not necessarily influence the men’s rea aspect of the case. Based on the precedent set by case B (a minor) v. Director of Public Prosecutions, 2002, the prosecutor, in this case, can still find the defendant guilty regardless of whether he believed the victim was over 13 years ago at the time. Thus in the ruling for this case, Lord Nicholls held that the need to establish men’s rea can be “negatived by necessary implication, which connotes an implication that is compellingly clear”¹⁵.

In a recent ruling that can be cited as precedent to similar cases in the case of R V. G, 2008, the House of Lords held that sex with a minor below the age of 13 years was under the Strict Liability Offence and should be arbitrated as such¹⁶. A journal article by Laura further clarifies the wording of Section 5 of the act as to mean rape constitutes sexual intercourse with a child below 13 years “regardless of the circumstances or his intentions at the time”¹⁷. For these reasons it would appear that the prosecutor can sustain a convincing argument against the defendant’s appeal under section 5 of the Sexual Offences Act and probably the same reason that made the prosecutor charged the defendant in the first place under this section.

Based on the same reason it is likely that the House of Lords would sustain the earlier sentence. Thus, in conclusion, my fair assessment is that the court will uphold some aspects of the case but also quash some as of the holdings of the earlier sentence.

References

Claire, O & White, R, Jacobs & White: The European Convention on Human Rights, 4th ed, Oxford University Press, London, 2006, p. 229.

Fletcher, G, Basic Concepts of Criminal Law, Oxford university Press, London, 1998, p. 127.

Friedman, L, A History of American Law. 3rd ed, Touchstone, New York, 2005, p. 16.

Keogh, A, Mens rea Sexual Offences Act 2003. Web.

Laura, J, Children Who Commit Sexual Offences: Some Legal Anomalies and Practical Approaches to the Law. The Howard Journal of Criminal Justice, vol. 46, no. 55, 2007, pp. 493-499.

Legislation.gov,Sexual Offences Act 2003, 2010. Web.

Owen, T & R Trowler, G v. R & ANR, 2007. Web.

Footnotes

L Friedman, A History of American Law. 3rd ed, Touchstone, New York, 2005, p. 16.
ibid
Legislation.gov, Sexual Offences Act 2003, 2010. Web.
ibid
O Claire & White, R, Jacobs & White: The European Convention on Human Rights, 4th ed, Oxford University Press, London, 2006, p. 229.
G Fletcher, Basic Concepts of Criminal Law, Oxford University Press, London, 1998, p. 127.
ibid
Ibid 132
T Owen & R Trowler, G v. R & ANR, 2007. Web.
Claire & White, loc cit.
Legislation.gov, loc cit.
ibid
A Keogh, Mens rea Sexual Offences Act 2003, 2010. Web.
Legislation.gov, loc cit.
A Keogh loc cit.
Owen & Trowler, loc cit.
J Laura, Children Who Commit Sexual Offences: Some Legal Anomalies and Practical Approaches to the Law. The Howard Journal of Criminal Justice, vol. 46, no. 55, 2007, pp. 493-499.

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