Now to the problem of Monica responding by ‘hitting Ross with a cast iron serving dish she has in her hand’, we are also informed that ‘Ross falls to the floor with blood pouring from his head and slips into unconsciousness’. For the answer to this, one needs to look at offences classed under s. 20 OAPA and s.18 OAPA. The actus reus under these offences can either be wounding or causing/inflicting grievous bodily harm. ‘Wounding’ is classified as the breaking of the continuity of the skin however more than a scratch (which would probably be dealt with under battery). Broken limbs, where the skin is not broken, are not classified as wounds. They do however come under GBH defined in DPP v Smith as ‘really serious harm’. This is completely different from an ‘interference with health and comfort’, a test for ABH. In Ross’ case we have the existence of both as we are told that blood gushes from a wound to his head and the fact that he falls unconscious is sufficient to indicate some form of internal damage/shock. The question now however is which section Monica falls under and this is determined by the mens rea of her act.
s. 20 OAPA applies to ‘Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm…’, s. 18 OAPA applies to ‘Whosoever shall unlawfully and maliciously…wound or cause any grievous bodily harm…with intent to do some grievous bodily harm…’ Breaking these down into simpler terms, for s.20, it must be proved that the defendant intended or risked harm, in Savage it was stated that ‘The defendant must at least of foreseen some harm – albeit not serious harm.’ For s. 18 however it must be shown that there was an ulterior intent, not only must the defendant cause GBH, he must do so with the intention of causing it in the first place. As was demonstrated in Belfon mere foresight of injury is not enough, there must be a specific intention to cause really serious injury. This is why s.18 carries a possible sentence of life as opposed to five years. Now if we apply all this to Monica’s case the simple fact that she retaliated ‘instinctively’ would lead me to opt for s. 20, however this would be a case for the jury to decide on.
The question one is now faced with is that of defences open to Monica. The defence of intoxication is open to crimes requiring ‘specific intent’ whether the drink was taken voluntarily (as is the case here) or involuntarily. The principles do not apply where the defendant is charged with a crime not requiring specific intent and the drink was taken voluntarily. In DPP v Majewski the House of Lords confirmed the rule, unclearly sated in Beard, that evidence of self-induced intoxication negativing mens rea is a defence to a charge of a crime requiring a specific intent but not to a charge of any other crime. This leads me to the question of self-defence must be asked. As it is stated, Ross pushed Monica first. Indeed in English Law there is no general duty to retreat but was Monica’s reaction proportional to the threat she perceived from Ross and would the reasonable person have acted in the same way? Of course these are all questions for the jury again, however one can identify possible excessive force. The fact that she hit Ross with a cast iron serving dish, an implement of quite some weight, could reasonably compare to the ‘4th shot’ as seen in the verdict of Clegg. This again is a question for the jury, Monica may claim that she thought Ross was going to follow up on his earlier attack, but alas I do not want to embellish too much on the information given to me.
The next legal problem is that of the events that took place between Joey and Phoebe when in their bedroom. It is stated,
‘Meanwhile, next door, Joey and Phoebe are in bed arguing. Joey tries to calm the situation by becoming romantic. Phoebe shoves him away, but Joey persists and has sexual intercourse with her despite her protests.’
Prima facie there has been a possible offence of rape committed, however the elements of the crime must be explored. This will be made considerably easier for the courts with the passing of the new Sexual Offences Bill published by the House of Lords on 29th January 2003. It clarifies what amounts to a rape in any circumstance, an area exploited by certain lawyers over the years. It states,
1 Rape
(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) subsection (2) or (3) applies.
(2) This subsection applies if A does not believe that B consents (whether because
he knows that B does not consent, gives no thought to whether B consents, or
otherwise).
(3) This subsection applies if—
(a) a reasonable person would in all the circumstances doubt whether B
consents, and
(b) A does not act in a way that a reasonable person would consider
sufficient in all the circumstances to resolve such doubt.
(4) Section 78 applies to an offence under this section.
(5) A person guilty of an offence under this section is liable, on conviction on
indictment, to imprisonment for life.
When applied to Joey’s case the actus reus is present as he indeed had sexual intercourse with Phoebe. This leads me to the element of mens rea. The fact that Phoebe shoves Joey away and protests seemingly covers both s. 3 (a) and (b), of course this is will be a question for the jury to answer. However the facts we are given state that Phoebe not only physically but vocally protested. The only defence available to Joey comes in the form of Clause 78 s.1 subsections (a) 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 the complainant consented, and (b) the defendant is to be taken not to have believed that the complainant consented unless the defendant proves that he did believe it.
Of course, the above has not been placed on a full statutory footing as of yet, the law as it stands states under the Criminal Justice and Public Order Act 1994;
- It is an offence for a man to rape a woman or another man.
- A man commits rape if –
- he has sexual intercourse with a person (whether virginal or anal) who at the time of the intercourse does not consent to it; and
- at the time he knows that the person does not consent to the intercourse or is reckless as to whether the person consents.
It has also been held that the offence continues throughout penetration, so that if the victim consents initially but revokes consent during intercourse, and the man fails to withdraw, he commits rape – Kaitamaki v R. This would show that even if Phoebe’s push had been regarded as horseplay the fact that she still protested during the act condemns Joey. The defence of a husband not being liable for raping his wife has been closed to Joey since the House of Lords abolished it in R and it was placed on a statutory footing by the 1994 Act. Joey could try and use the defence of mistaken belief in consent as seen in DPP v Morgan where the man is mistaken, in that he quite simply lacks the fault element required for the offence but then a test of recklessness applies. The prevailing views are that a man commits rape recklessly if he ‘could not care less’ whether or not the victim consents as seen in Breckenridge. An alternative view is that the defendant ‘carried on regardless’ of whether the victim was consenting, as demonstrated in Gardiner.
The final legal problem that needs dealing with in the case is that which is brought about in the meeting between Joey and Monica at the front door. Here we see Joey pushing Monica out of the way, with her subsequently falling against the door and banging her head. This amounts to an assault occasioning actual bodily harm as covered by s. 47 OAPA and if proved is punishable by up to five years in prison.
The actus reus of the crime must be a technical assault or a battery and in this case, depending on how hard Joey pushed Monica it could count as either. As for how ‘bodily’ it must be, as I stated earlier be an ‘interference with health and comfort’ and banging ones head would qualify as this.
The mens rea is that required for common assault or battery, once the intention or recklessness of the action has been proved the mens rea of the initial assault flows to the actual bodily harm. When we talk of recklessness here it is of the Cunningham variety meaning that there is no need to prove intent to cause injury or foresee bodily harm - Roberts. This is best demonstrated in the case of Savage where the accused threw beer at the victim in the pub, the glass was let go of (either deliberately or by accident) and the victim was cut by broken glass. The battery came from the throwing of the beer and so there was no requirement to show that she foresaw the risk of actual harm. When we apply this to Joey’s situation it seems that he has little or no defence against the charge.
Bibliography
Ashworth A. ‘Principles of Criminal Law, Third Edition. New York: Oxford University Press, 1999
Smith J. C and Hogan. Criminal Law, Tenth Edition. Bath: Butterworths, 2002
Criminal Law Act 1967
Criminal Justice and Public Order Act 1994
Offences Against the Person Act 1861
Sexual Offences Act 1956
Sexual Offences Act (Amendment) Act 1976
Sexual Offences Bill – House of Lords 2003
Innes v Wylies (1844) 1 Car & Kir 257.
Collins v Wilcock [1984] 3 AII ER 374 at 378.
Cunningham [1957] 2 QB 396
DPP v Smith [1961] AC 290
Savage [1991] 4 AII E.R 698
Belfon [1976] 3 AII E.R 46
DPP v Majewski [1977] AC 443
Clegg [1995] 1 AII E.R 334
Kaitamaki v R [1985] AC 147
Breckenridge [1984] 79 Cr App R 244
Gardiner [1994] Crim LR 455
Roberts [1971] 56 CR App Rep 95
