Criminal Law Fact Pattern
Criminal Law Fact Pattern
Part One
Sexual Abuse
Sexual
abuse can be described as engaging in a sexual exploit with a woman inept of
declining participation in; or communicating willingness to engage in a sexual
act(Ashworth, &Horder, 2013). The facts of the case show that Derek touched
Anne by inserting his fingers into her vagina thereby arousing her sexually.
Anne on her part was not in a position to decline the touching. From the facts
of the case, Anne initially declined the advancement of Derek by refusing
blatantly his advancement to engage in sexual intercourse. At this period, it
can be deduced that Anne was in a position to decline or agree to sexual
intercourse. However after she took a number of whiskies, her ability to resist
Derek advancement was impaired making her vulnerable to his advancement. The
intention of inserting his hands into her genitals was purposefully aimed at
arousing her for the eventual sexual intercourse that took place. The actual penetration occurs when Anne is
unconscious. The act of penetration is also a commission of another grave
offence which is rape.
Rape
Rape is an
offence committed when sexual intercourse occurs between a female and a male
without consent. Lack of consent is demonstrated by several factors such as
force, threat to use force and the inability to give consent(Ashworth,
&Horder, 2013). From the facts of the case, institution a rape case against
Derek can succeed since Anne was not in a condition to provide consent.
In the second
instance, Derek engages in sexual intercourse with Bina, give consent on the
belief that Derek is David Beckham’s brother ( that is not true) and would see
her meet the superstar. In this respect, it can be said that Derek achieved his
intentions by fraud and misrepresentation of facts that led to Bina’s
consent. Traditionally, the development
of rape by fraud has developed into two forms. The first form is fraud in the
factum that goes to the nature of the act. The second form is fraud in the
inducement that does not go to the nature of the act or the act or the facts
surrounding the act, but to other collateral factors. As a consequence, Derek
achieved his intentions through fraud in the inducement by stating collateral
of being David Beckham’s brother and would help Bina meet him if she consents
to sex.
Negation of Consent by Fraud
The development
of the law in regard to rape by fraud still elicits different views. However,
certain agreements have been ascertain as to fraud in the factum and fraud in
the inducement. Consent given by a party who does not realise the nature of the
engagement or the intercourse can be vitiated and thus results to liability in
rape (Ashworth & Horder, 2013). On the other hand, fraud in the inducement
does not vitiate the consent nor impose liability. In this regard, Bina will
not be considered as a victim of rape within the traditional development of
rape by fraud. However, certain jurisdictions have abolished the distinction
between the two forms of obtaining consent by fraud. In other words, obtaining
consent in the factum and consent in the inducement leads to liability in rape.
Taking this approach, Derek would be liable in both instances since Bina’s
consent will be vitiated accordingly.
The current
change in the position has been influenced by the contemporary analysis of the
offence of rape that views it as a violation of a person’s sexual autonomy
rather than the crime of violence and consent(Hooper, Ormerod, Murphy, &
Atkinson, 2009). The contemporary view of rape has ousted the element of force
as a focal point of rape law. However, consent still plays a critical role in
rape cases since determination on consent establishes whether an act of
intercourse can or cannot pass as rape.
Available Defences
The crime of
rape, like other criminal offences, except the ones that call for strict
liability, have certain defences available to the defendant in a rape case. The
first available defence goes to the core of the case facts sine it forms the basis
of the establishment of the crime.
Consent and Mistaken Belief of Consent
In rape cases,
consent goes to the core of the case since rape is obtaining sexual intercourse
without consent of the party (Hooper, Ormerod, Murphy, & Atkinson, 2009).
It is not a precondition that consent in sexual intercourse is given in verbal
communication. Consent can be given through leading actions that communicate to
the other party an intention to engage in sexual intercourse. In the situation
of Derek and Anne, it can be said that consent was given when she failed to
prevent him from inserting his finger into her genitals. However, the assertion
will be subject of proof by the Court hearing the matter.
Further, Derek
can claim mistaken belief of consent when Anne did not stop him from arousing
her sexually. For, instance when Derek began to arouse her, she was still
conscious of the happenings around her. From the common law standpoint, a
reasonable mistake negates general intent. Relying on, on the defence of
reasonable mistake or mistaken belief demand that such belief or mistake be
made innocently of the preceding facts. Further, relying on the defence would
prompt the Court to determine the reasonableness of the mistake, and the belief
claimed. The standard of determining reasonableness is that of a “reasonable
person”. In the circumstance, Derek would fail the test since a reasonable
person would not take advantage of person’s incapacity to give consent or have
sexual intercourse with the unconscious person.
Recklessness
From
the facts of the case, Derek knows that he is HIV positive but still engages in
unprotected sexual intercourse with both Anne and Bani. However, he claims that
he is ignorant of the risk of HIV transmission. Despite the claim, Derek is
still liable for being reckless as to the risks of HIV transmission. Further,
ignorance cannot be offered as a defence against the reckless behaviour. Bani
on her part can also be considered reckless in the manner of giving her
consent. The question might thus arise before the hearing Court whether Bani is
also liable to a certain extent for her current HIV status. Determination of
this fact would tend to make Bani, who is a victim of a sexual act a
perpetrator of the same offence. Therefore, despite the condition that Bani
finds herself in, she cannot be taken to be partly liable for her condition on
the legal basis of recklessness. Moral arguments may however suffice to
question her reasonableness with regard to taking precaution since a reasonable
person ought to know the status of the person he consents to have sexual
intercourse with to reduce the chances of transmission.
The Best Evidentiary
Rule
The
Frye rule denotes that expert scientific evidence should only be admitted when
it is generally accepted by the scientific community. On the other hand,
Daubert rule relies on the relevance to the case before Court. It denotes that
expert evidence should be admitted if it is deemed helpful and germane to the
scientific issue before the Court. As a result, the legal focus on the
relevance of the evidence shifts from the scientific society to the evidence
itself. The rule in Daubert presents a risk of deferring to the established
consensus by the scientific community. The Frye rule provides more certainty
especially when it comes to matters of rape that calls for beyond reasonable
doubt proof. The use of Daurbert may leave some doubts as to the strength of
the presented evidence.
References
Hooper, A., Ormerod, D. C., Murphy, P.,
& Atkinson, D. (2009).Blackstone's criminal practice:
2010.
Oxford: Oxford University Press.
Part
Two
Assault
Assault can be defined as an offence
against the person that is any unlawful and unpermitted touching of another.
Assault is the act that creates an apprehension in the mind of the person it is
directed to making them fear for an imminent, harmful or offensive contact to
their person. The threat must be capable of being carried out by the person
threatening to do it. Further, ability to carry out the offence must be present
and apparent. Assault can pass as both criminal and civil offence depending on
the institution by the complainant. From the facts of the case, Fahim threatens
Aisha with running over her with the car if she continued moaning over the
claims and accusations of cheating against him. However, it is not clear from
the case facts whether Fahim could carry out the threat at that particular
time. If he had the car at the time of confrontation, then Fahim is guilty of
assault against the person of Aisha. However, if he said the statement but did
not have a car with him at that particular time he cannot be held liable for
the offence. However, if Aisha has reasonable belief that Fahim would actually
carry out the threat then the assault case can stand
Possible
Defence
A possible defence against an assault in
the circumstances of the case is self-defense. Fahim can rely on the defence of
self-defence since Aisha is medically known to get aggressive due to her
medical condition. From the facts of the case, Fahim can claim he used the
threat of running over her with the car as a means to protect himself from the
inevitable confrontation and the fight that would have ensued had he not
applied the threat. Further, it can be stated that Aisha provoked the threat by
her confrontational behaviour.
Murder
Murder is the willful, premeditated and
deliberate killing of another person. The definition of murder gives two
components in order to succeed in a Court of law. The first component is the
state of the mind of the perpetrator. The person committing murder must possess
the intention of carrying the offence that is normally referred to as the Mens
Rea of the offence (Emsley, 2005). Mensrea is the state of mind and is the core
at determining whether the actual offence is indeed murder. The existence of
mensrea does not need to focus on the intended victim. For instance, a murder
that a person intended to kill but ends up killing the wrong person is still
murder since the act of murder eventually comes to pass (Emsley, 2005).
From the facts of the case, Mens Rea
existed from the point at which Fahim threatened or assaulted Aisha to the
point that she poured paraffin on him while asleep. Aisha seemed to have
entertained the thought of killing her husband and must have planned on the
when and how to commit the act. The duration took before carrying out the
offence allowed for the elements of the crime to be entertained and a plan to
be hatched in relation to committing the offence. She waited until the husband
was asleep then moved to execute the thought.
The second limb of the offence is the
commission of the offence itself. The stage of the commission is normally
referred to as Actus Reus. At this stage, the offender actually carries out the
intended offence. Liability only attaches when the actual offence has been
committed and not at the thought of committing an offence (Emsley, 2005). In
this respect, Aisha is liable for murder of her husband since the entertained
thought has actually come to be executed.
The
elements of murder are traceable from the facts of the case both
circumstantially and factually. First, intention can be ascertained from the
case based on the timing. Another element is deliberation that involves how to
commit an offence. An inference as to this element is also traceable since the
duration allows for such preparation. Premeditation like deliberation can be
inferred from the case facts.
Possible
Defence
Despite the occurrence of the killing,
Aisha would still have a defence against a charge of murder upon being
arraigned before Court. First, Aisha can still rely on the insanity that
denotes that she was not in the correct mind while she was committing an offence
and thus did not understand the nature of her actions. The medical viewpoint
would support Aisha claims since the accident made her develop an aggressive
and moody personality that made her engage in a lot of fights with the husband
during their stay.
The medical condition of Aisha makes her
to be classified as not being a person of ordinary self-control. Therefore, her
character goes to the facts of the case and should be considered in the
determination and establishment of murder.
Further, Aisha can rely on the defence
of provocation. The defence applies where the defendant is provoked by the
victim making him or her react instantly and without thought on the action
being taken. The general rule demand that any person relying on the defence of
provocation must have reacted at that particular point of provocation and not
waited to react at a later time (Emsley, & Royal Society of Chemistry 2008).
An allowance gives the perpetrator an opportunity to plan the commission of the
offence and thus defeats the reliance on provocation as a defence.
Despite the general rule regarding the
defence of provocation, it can still pass regardless of the time frame due to
the principle of battered women syndrome (Emsley, & Royal Society of
Chemistry 2008). The principle specifically applies to the cases of women only.
Men cannot rely on the principle. The happening in the house and the
accumulation of the problems that Aisha faced were enough to get her provoked
to act in the manner in which she did. However, even in this area, it is still
important to ascertain whether there existed other provocative acts on the part
of the Fahim. From the facts of the case, it can be noted that the two engaged
in several fights that might pass as cumulative provocative acts that necessitated
the killing as an unpremeditated revenge.
Best
Evidentiary Rule
The Frye rule denotes that expert
scientific evidence should only be admitted when it is generally accepted by
the scientific community. On the other hand, Daubert rule relies on the
relevance to the case before Court. It denotes that expert evidence should be
admitted if it is deemed helpful and germane to the scientific issue before the
Court. As a result, the legal focus on the relevance of the evidence shifts
from the scientific society to the evidence itself.
The
Case of murder as presented before the Court exhibits uniqueness of its kind in
several aspects. In addition, the purpose of the law is to ensure that justice
is served to both the defendant and the victim of murder. The application of
Frye would ensure that the case is decided not based on the generalisation of
scientific findings rather than the available evidence. In this case, it
would be proper to apply Daubert rule
since it allows for the nature of the offence to be clearly defined and decided
on the available evidence that are relevant to the case. The application of
Frye rule in this case would make it susceptible of admitting evidence that is
irrelevant to the case.
References
Emsley, J. (2005). The elements of
murder: a history of poison. Oxford: Oxford University
Press.
Emsley, J., & Royal Society of
Chemistry. (2008). Molecules of murder: Criminal molecules and
classic
cases. Cambridge: Royal Society of Chemistry.
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