"Internet Law Book Reviews" Provided by Rob Jerrard
Change in social attitudes to sex.
R v Boyea
This is the second time recently that the Court of Appeal have considered the changes of social attitudes to sex. In Brown Laskey Jaggard and others 156 J.P. 475, the Court of Appeal had to decide whether it was in the public interest to prosecute persons who had consented to acts of wounding performed for the victims' sexual pleasure?
R v Boyea 156 J.P. 505, concerned a charge of indecent assault upon a woman for which the appellant had been sentenced to six years' imprisonment. The complainant, went to a public house near her home to buy some cigarettes. She got into a conversation with two men. One of the men bought her a cider. She returned home and as she tried to enter her house she was forced into the house and into her bedroom. She was indecently assaulted. She fainted and some hours later the police were called. When the police arrived they found the appellant still asleep in bed. The complainant was very distressed, very confused and, smelt of alcohol.
The appellant was arrested and interviewed. He said he was invited back by the complainant to see her dog. He admitted having drunk about 8 pints of lager; and couldn't remember any more.
The complainant was examined the next day: she was found to have, inter alia, injuries to the interior and exterior of the vagina. A blood sample showed 241 mg of alcohol in 100 ml of her blood (drink driving legislation allows a maximum of 80 mg). She gave evidence that she had consumed some cider since the incident and before the examination.
A witness gave evidence that the complainant had been seen leaving the pub with the appellant and the suggestion was they were on amiable terms
The trial Judge was satisfied that force had been used in the genital area and that both parties were under the influence of alcohol to a very considerable extent
Generally speaking, in an assault charge the prosecution had to prove that the victim did not consent, an assault being any unlawful touching of another without that other's consent. This was the third ground of appeal.
In summing up the judge said, "Two people in the course of sexual activity may agree to rough behaviour in the same way that people in sport may agree to behaviour which but for their agreement would constitute an assault, but they do not set out to do bodily harm, and if any bodily harm is likely it is likely to be of a trifling and transient nature, but the law is that consent cannot be a defence where the indecent assault consists of things done which the jury decide were intended or likely to cause bodily harm."
The Judge's directions were clearly based on R v Donovan (1934) 98 J.P. 409; the central proposition of which the Court of Appeal found consistent with the latest relevant decision; Attorney General's Reference (No 6 of 1980) (1980) 145 J.P. 429, with which they agreed. That proposition can be expressed as follows: an assault intended or which is likely to cause bodily harm, accompanied by indecency, is an offence irrespective of consent, provided that the injury is not "transient or trifling". The Court of Appeal concluded there had been no misdirection.
The Court considered that they must take into account the fact that sexual attitudes had changed over the years. As a generality, the level of vigour in sexual congress which is generally acceptable, and therefore the voluntarily accepted risk of incurring some injury, is probably higher now than it was in 1934; the phrase "transient and trifling" must be understood in the light of conditions in 1992. The Court qualified this by adding that the extent of the violence inflicted on the complainant went far beyond the risk of minor injury to which, if she consented, her consent would have been a defence. It was inconceivable that the complainant would have consented to the injuries which were in fact inflicted on her.