How the reforms of the offence of rape in s.1 of the sexual offense Act 2003 achieved a balance between the protection of Complainant and defendants in these difficult cases; It is however arguable that the statutory definition of rape is not suffice. And it is actually more applicable to lawyers than judges, many judges and lawyers criticized this definition citing that it will make judges strain in making their major decisions in the court. The sexual offences Act complicated the law since it will results into many acquittals thus making members of the public to lack confidence in the judiciary.
The judge will quite often not state that his knowledge on the law interpretation is limited and as per that he may opt not to convict any man or woman due to his lack of knowledge. It is therefore proper for the judges and magistrates to have a fall back plan so as to uphold their decision making plans. To me, there is a shared definition of what consent should be and what it should not be. Statutory definition of consent is uncalled for, and most judges might understand what it is all about.
The most important is how a judge construes the meaning of consent and not what influenced the decision. The question should not be whether there was a consent or not, but whether there was a sexual intercourse. The assumptions contained in the s.75 and 76 relates to absence of consent. The objective of enacting these two subsections is to create an opportunity for the improvement in the rate of convictions and ensure also correct balance between plaintiff and ensuring fairness for the defendants.
Even though these provisions have been long yearned for, they are however been less productive. This is particularly applicable to s.75 which many judges prefer not to deal with when faced with such a difficult case. Judges always find it too difficult to deal with and are really complicated to them .The main fear that looms a head of them is the fear of judicial trespass, as the decision on whether the consent should be upheld by the judges or not. For instance a case raised requiring s.75 to be applied.
Despite having all the evidences at his disposal, that the violence had been used against the plaintiff, the judge did not however apply it. The judge referred to it as just a can of worms. The evidence is required to rebut the assumption; the advocate’s opinion is therefore a prequisite to provide this empirical evidence.
The scope of the offence of sexual Assault in s.3 of the sexual offence Act 2003; No, it is not actually clear since it based its argument on the consent principle which is very difficult to determine. The sexual Act 2003 migrated away from a subjective argument to an objective one which is in contrast to other fields of criminal law.Redifining consent assumption created a major reform in this Act. The reasoning of the defendant is contextualized since he is made to believe that consent has to be beyond reasonable doubt. S.1 (2) allows for the determination of the extent of the belief paying attention to all the evidences before hand and then making appropriate decisions.
This task of contextualization will dilute the steps taken by a defendant before a plaintiff consented to his sexual advances. It is at this point, where we arguably say that the law is not clear.Sex is a duty of only two parties, so the focus should not be on one person who is making the plaintiff but you also have to focus on the defendant. This will therefore place undue burden on the defendant, noting that it would have been easier for the defendant to determine that the reason was beyond reasonable doubt. Despite my support for the objective test, it appears unfounded for the academic support
When an enquiry was made whether the claim was justified in all the situations, it was found out that the belief was justifiable in the situations. This eventually led to a more intense scrutiny of the behavior of the complainant not only before the act but also after the act. The law is still projected towards the behavior of the defendant and can also be reasonably focused on complainant himself. The Act is therefore too complicated and also failed to aid the judges in implementing their decisions in curbing the sexual offences propagators.
The parliamentary reforms thus failed in implementing their decisions in and dealing with their decision. Instead they have transferred some of their roles to the judiciary thus creating a backlog of activities in the judicial sector. The law is therefore too lenient in dealing with rape sensitive cases. The perception of the judges and magistrates and their personal convictions a bout the defendandant and the plaintiff are more vital to decide a case before hand and either to convict or acquit rape case.
We are obliged as lawyers, judges and magistrates to look into the beneficial outcomes and carry a thorough enquiry and analyze the circumstances vigorously and form a judgment as what circumstances surrounds the male and female sexuality which may continue to be viewed as a criminal activity. The definition of rape was thus a mended to include any intercourse with a woman without her consent .The rape plaintiff is actually anonymous ,anomyty for rape defendants.Thr act also modeled rape to cover vaginal or anal intercourse a against a man or a woman thus acknowledgeging that men can also be raped.
According to s.1 of the sexual Act, Samantha ought to have respected Nina’s sexual Autonomy, This in trying to locate the wrongs involved in a certain forms of sexual conducts. In carrying out such criminal offenses in relation to sexual conducts, respect of sexual autonomy operates at two levels. Where one the citizen takes part in the sexual activity in respect of which he or has not been freely done. This results into a sexual offense namely that activity that breaches ones sexual autonomy is wrong punishable by law. Nina should therefore seek for legal remedy against Samantha and be compelled to pay.
On the other hand since Samantha and Dan has been cohobating for more than two years now, it is legally regarded as an informed consent and both parties are fully aware of their actions, According to the sexual offence Act 2003.s.1 no such party should seek legal remedy. Only that it is an exception with Samantha because she operates as a man and at the same time as a woman. In such situations, she cans sure Dan for sexually harassing her, or yet still Dan can sue her for sexual harassment due to her special conditions.
Mark should be held personally liable for first molesting Donna who was her ex-girl friend. Even though they were lovers before the ordeal, Mark did not respect her sexual autonomy and went out of his way to forcefully molest her in front of her peers. The second count of a criminal activity against Mark is first thinking that Janice is 16 years but she is only 12 years.
This is a minor whom he takes to his house and forcely injects pain in her private parts. According to the sexual offence Act, s. 75 and 76 apply to an offence under this section. Subsection states that a person guilty of an offence under the section shall have involved in activities such as penetration of Janice’s vagina with his part of body, that is his fingers. Mark should therefore be summarily be convicted for a jail term not exceeding six months.