The Promotion Exams
| DOI | 10.1177/0032258X6403700210 |
| Date | 01 February 1964 |
| Published date | 01 February 1964 |
| Author | J. Daniel Devlin |
| Subject Matter | Article |
SUPERINTENDENT
J.
DANIEL
DEVLIN,
LL.B.
Of
the Southend-on-Sea Constabulary and the Directing
Staff
of
the
Police
College-
The fourteenth
of
a series
of
articles
of
interest to examination
candidates and all concerned with training.
THE
PROMOTION EXAMS
XIV
•.•
SEXUAL OFFENCES (continued)
In this article we shall deal with three crimes ; intercourse with
defectives, incest, and unnatural crimes.
INTERCOURSE
WITH
DEFECTIVES
Students who use the statute, or a text-book earlier than 1959,
should note that following the radical changes in the law relating to
mental illness and disorder which were wrought by the Mental
Health Act, 1959, many of the sections relating to mental defectives
in the Sexual Offences Act, 1956, were affected. Thus, the original
s. 7, which penalized intercourse with an idiot or imbecile has been
repealed by the 1959 Act and replaced by a new section which is set
out below; s, 8, which penalized intercourse with a defective in an
institution, etc. has been repealed and not replaced; and s. 45 which
contained a definition of " defective" has now been given a new
definition of the term. A provision for the further protection
of
defectives is now to be found in s. 128 of the 1959 Act.
It
will be remembered from the consideration of rape in the
previous article that intercourse with a defective is in fact rape if the
nature and degree of the victim's mental disorder is such that she is
quite incapable of giving or withholding consent: R. v. Barrett
(1873) L.R. 2C.C.R. 81.
It
is doubtful, however, whether a court
would convict of rape if the circumstances showed there was con-
sent of some
kind-even
an animal instinct: R. v. Barrett, above;
R. v. Fletcher (1859) Bell 63; and accordingly statutory provisions
exist for the protection of female defectives, and they apply whether
or not there is consent in any particular case.
Section 7of the 1956 Act, as substituted by s. 127 of the Mental
Health Act, 1959, provides,
(I)
It
is an offence,subject to the exception mentioned in this section, for
a man to have unlawful sexual intercourse with a woman who is a defective.
(2) A man is not guilty of an offence under this section because he has
unlawful sexual intercourse with a woman, if he does not know and has no
reason to suspect her to be a defective.
A
"defective",
is defined by s. 45 of the Sexual Offences Act,
1956 (as amended by the Mental Health Act, 1959) as a person suffer-
ing from severe subnormality within the meaning of the Mental
Health Act, 1959. By s. 4 (2) of that Act,
(2) In this
Act"
severe subnormality" means a state of arrested or incom-
plete development of mind which includes subnormality of intelligence and
February1964 81
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