Successes and Failures of Sexual Offences Act 2003 Essay

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Successes and Failures of Sexual Offences Act 2003 The Sexual Offences Act 2003 was heralded as a response to shifting social attitudes, encompassing the broad libertarian approach towards sexual behaviour that has become increasingly dominant since the Act that preceded it whilst attempting to account for the myriad of more widespread sexual deviancies and abusive practices that were otherwise poorly regulated by existing statute. It was designed as a regularisation of the law on sexual offences giving a modern and consistent perspective upon the particular offences; one that would allow the courts to proceed on a fairer and less discriminatory basis, both in its prosecution of offenders and it…show more content…
The first of these propositions is unproblematic and remains central to the law on consent. The second proposition hangs entirely on what formulation of 'recklessness' is being used. Up until the case of Morgan (1974), a defendant was judged reckless as to the existence of consent by virtue of an objective test as to the presence of reasonable grounds upon which to decide that the woman was consenting. The defence of honest but mistaken belief was only available if such reasonable grounds could be established. The House of Lords in Morgan decided that the objective test was not consonant with the established basis of mens rea in criminal activity; that the guilt must relate to the state of mind of the defendant at the time of the criminal act. The test became a subjective one; did the defendant honestly believe in consent regardless of the reasonableness of that belief? If so, no conviction could be found. One can immediately see both the academic attraction of the Lords' approach in attempting to cohere rape with criminal acts in general, as well as the obvious practical stumbling block that the Morgan approach would, and did, entail. As long as the defendant could convince the court that, regardless of signs to the contrary, he genuinely held a belief in consent, he could escape conviction. This facet of
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