SECTION A:
Homicide of Roman by Kendal
Liability is based on foreseeability of harm and whether parties had a legal duty of care towards others. In this case, Kendal knew or should have known that his actions posed a substantial and unjustifiable risk of harm to Roman, and as such, he is liable.[1] Logan was not directly involved in the altercation, did not know that Kendal was armed, and had no legal duty of care towards Roman. As such, Logan is also not liable for Roman’s death.
Kendal is liable for the death of Roman as a result of his actions. Kendal was acting with intent to frighten Logan into giving him money that he believed was owed to him, and his actions led to Roman’s death.[2] Kendal could be charged with murder or manslaughter, depending on the specific circumstances of the case. Logan may also have some liability in the situation, as he could be charged with negligence for not taking steps to ensure that Kendal did not have access to firearms. However, as the victim of a crime, Logan is most likely entitled to any financial compensation that is awarded in court. The liabilities of the parties are summarized below.
Kendal: liable for murder or manslaughter if charged
Logan: liable for negligence if not protected by a gun safe
Roman: liable for taking too many aspirin and dying as a result
Kendal’s actions were reckless and constituted criminally negligent homicide. Kendal knew or should have known that his actions posed a substantial and unjustifiable risk of harm to Roman.[3] Logan is not liable for Roman’s death. Although Kendal was screaming at Logan about money owed, Logan did not know that Kendal was armed or that he intended to use any means necessary to get the money back. Roman was not a party to the confrontation and did not pose a threat to either party. Logan is not liable for the death of Roman. Although Kendal was screaming at Logan about money owed, Logan did not know that Kendal was armed or that he intended to use any means necessary to get the money back. Roman was not a party to the confrontation and did not pose a threat to either party.[4]
The party with the highest liability will likely be responsible for paying damages in court. In this case, Kendal is most likely responsible for paying damages to Roman’s family, as well as any legal fees that may be incurred. Logan may also have to pay damages in light of his negligence, although the amount of compensation he will owe is unclear.[5] However, Roman’s estate may have to bear some responsibility for his death since he took unnecessary risks by taking more than the recommended dose of aspirin.
In addition, Kendal may face criminal charges for criminally negligent homicide. However, as Logan was not directly involved in the altercation and did not know that Kendal was armed or intending to use force, Logan is not liable for the death of Roman.[6]
Civil liability may still exist in cases of wrongful death, depending on the circumstances. For example, if Logan knew or should have known about Kendal’s dangerous and unlawful behavior and did nothing to stop it, Logan may be held liable for damages.
There is no set amount of money that a person who is responsible for a wrongful death may be required to pay. Each situation is unique and will depend on the facts of the case. In general, however, survivors of a wrongful death may be entitled to damages including financial compensation, funeral expenses, and pain and suffering.[7]
It is likely that all three parties will end up paying some form of compensation in this scenario. It is important to note that the specific liabilities of each party will vary depending on the specific circumstances of the case. In general, however, all three parties are likely responsible for some form of financial compensation. It is also important to keep in mind that liability does not always mean that a party will be financially responsible for a situation; it may simply mean that they are legally liable.[8] If you are involved in a legal dispute, it is best to speak with an attorney to learn more about your specific legal rights and liabilities. It is also important to keep in mind that liability does not always mean that a party will be financially responsible for a situation; it may simply mean that they are legally liable.
It is important to note that the specific liabilities of each party will vary depending on the specific circumstances of the case. In general, however, all three parties are likely responsible for some form of financial compensation. It is also important to keep in mind that liability does not always mean that a party will be financially responsible for a situation; it may simply mean that they are legally liable.[9] If you are involved in a legal dispute, it is best to speak with an attorney to learn more about your specific legal rights and liabilities.
It is likely that Logan and Kendal will have to go to court in order to determine who is ultimately responsible for the death of Roman. This could result in considerable legal costs for both parties, so it is important that they take steps to ensure their affairs are properly handled from the outset. This includes ensuring that all firearms are kept safely stored and that any money owed is promptly paid. It is also important to note that, even if Kendal does have a valid legal claim against Logan, Logan may still be able to avoid liability by proving that he was acting in self-defense.[10] This could include demonstrating that he had reason to believe that Kendal was about to harm him. In this case, it is likely that Logan would not be held liable for the death of Roman. However, his failure to keep a firearm safely stored could still result in criminal charges being brought against him.
Legal Implications of Contracting HIV from Unprotected Sex
There are several liabilities that could arise from the situation described in the question. The first is for Harvey, who engaged in unprotected sex with Sabrina despite not having a condom. This could potentially lead to Sabrina contracting HIV, which would have serious consequences for her health.[11] Harvey could also be liable for any injuries that Sabrina sustained as a result of the fight with Nick, such as her concussion. Sabrina could also bring a civil suit against Harvey for the harm that he has caused her. Ultimately, each party could be liable for damages incurred as a result of the situation. Assess the liabilities of the parties.[12]
Sabrina could potentially sue Harvey for battery, as he punched her without her consent. Nick could also sue Harvey for battery, as he was punched without his consent. Additionally, Sabrina could potentially sue both Harvey and Nick for negligence, as they both failed to take reasonable precautions to avoid injuring her.[13] Finally, Sabrina could also sue the restaurant where Harvey and Nick were drinking, as they may have been responsible for her getting HIV. All in all, it is likely that Sabrina will be able to claim against at least one of the parties involved in this altercation. Assess the liabilities of each party.
There are a few liabilities that could potentially arise from the situation described in the fact scenario. For Harvey, one potential liability could be criminal charges for assault and battery. Another potential liability could be a civil suit from Nick for the injuries he sustained as a result of Harvey’s punch.[14] For Sabrina, one potential liability could be criminal charges for knowingly having unprotected sex with a person who is HIV positive. Another potential liability could be a civil suit from Harvey for injuries he sustained as a result of Sabrina’s hit.
The liabilities of the parties would depend on the state in which the incident occurred. In some states, both Harvey and Sabrina could be held criminally liable for their actions.[15] For example, in California, Penal Code §261.5 makes it a crime to have unprotected sex with someone without their consent, if the person knows they are HIV positive. If Sabrina was not aware that Harvey was HIV positive, then he could be charged with assault for punching her, and she could sue him for damages.[16]
However, in states where the statute of limitations has expired, or where Sabrina cannot sue for damages because she is HIV positive, Harvey and Sabrina would only be liable for property damage. For example, in Florida, a person who commits an assault with a deadly weapon (in this case, the beer bottle) is guilty of a felony punishable by up to five years in prison.[17] If the victim is not injured beyond temporary disfigurement or impairment of normal health, then the perpetrator may only be guilty of a misdemeanor. If the victim is injured, then the perpetrator may be guilty of a felony punishable by up to ten years in prison. In this case, Harvey would only be guilty of property damage and Sabrina would not have any legal recourse for damages.[18]
Both parties could also be held civilly liable for their actions. For example, Harvey could be sued for assault and Sabrina could sue him for battery. However, these lawsuits would likely be unsuccessful because both parties would have a defense based on the doctrine of mutual consent.[19] Mutual consent is a legal principle that states two people who engage in sexual activity knowing that one of them is HIV positive are not responsible for any resulting injuries because they agreed to engage in the activity and assumed the risk of infection.
Therefore, Harvey would likely argue that Sabrina consented to have sex with him and knew his HIV status, and therefore she is not liable for any injuries she may have sustained as a result.[20] Similarly, Sabrina would likely argue that she consented to have sex with Harvey and did not know his HIV status, and therefore she is not liable for any injuries he may have sustained as a result. In both scenarios, the parties would likely reach a settlement out of court.
If Sabrina were to sue Harvey for battery, she would have to prove that Harvey intentionally touched her in an offensive or harmful manner. This might be difficult to do because it is possible that Harvey’s contact with Sabrina was accidental or unintentional. If Sabrina were to prevail in court, she would likely be awarded damages, such as compensation for any emotional pain and suffering she has experienced as a result of the assault.[21]
Each of the parties have grounds to bring a civil suit against one or more of the other parties. It is likely that Sabrina will pursue a civil lawsuit against Harvey for battery, and Nick may pursue a civil lawsuit against Harvey for assault. Ikea may also be liable for product liability, as the vase was likely not adequately protected.[22] This could result in significant damages being awarded to Sabrina and/or Nick. It is also possible that Ikea will settle out of court, avoiding any potential legal conflict. Regardless of the outcome of any potential lawsuits, both Sabrina and Nick will likely have suffered physical and emotional damage as a result of the fight. This damage may require lengthy and costly treatment to heal.[23] In sum, while there are potential liabilities for all parties involved in this altercation, the fact that HIV was contracted as a result means that Sabrina will likely face the greatest financial burden in terms of seeking medical attention and rebuilding her life. Ultimately, this case provides an example of the importance of being safe when engaging in sexual activity, and underscores the importance of getting tested for STDs/HIV.
SECTION B:
Whether or not implied consent can be used as the basis for rape convictions
The Sexual Offences Act 2003 defines consent as “an affirmative act or vocal agreement by a person who is competent to give consent” (s.5). The SOA 2003 also introduced the offence of sexual assault, which is a sexual offence that does not involve rape. The law regarding consent under the Sexual Offences Act 2003 is broad and allows for a large amount of discretion by the jury.[24] This discretion can be seen in the case of R v A (No 2) [2012] EWCA Crim 2, in which the defendant was convicted of rape even though the complainant had given consent.
Under the SOA 2003, consent is a defense to rape if the defendant can show that the complainant consented to the sexual activity, and that the defendant reasonably believed that the complainant consented to the sexual activity.[25] In order to establish that the complainant consented, the defendant must prove both of the following: first, that the complainant voluntarily engaged in sexual activity with the defendant; and second, that the complainant knew or ought reasonably to have known that engaging in sexual activity with the defendant would involve a risk of harm.
In order to show that the complainant consented to the sexual activity, the defendant must prove that:
– The complainant agreed to engage in sexual activity; and
– The defendant reasonably believed that the complainant agreed to engage in sexual activity.
If these two elements are proven, then consent will be a defense to rape.
However, Under the SOA 2003, consent is not a defense to sexual assault if the defendant can show that the complainant did not consent to the sexual activity, and that the defendant reasonably believed that the complainant did consent.[26] In order to show that the complainant did not consent, the defendant must prove two things: first, that there was an absence of affirmative cooperation on the part of the complainant; and second, that based on all of the circumstances surrounding this incident, the defendant reasonably believed that the complainant had agreed to engage in sexual activity.[27]
If these two elements are proven, then consent will not be a defense to sexual assault.
The SOA 2003 sets out several factors that can help determine whether or not a person has consented to sexual activity. These factors include whether the person is sober, lucid, and aware of what is happening; whether the person is speaking freely and without coercion; whether the person appears to enjoy what is happening; and whether the person is physically and emotionally able to consent.[28] It is important to remember that even if a person appears to have consented to sexual activity, they may still have refused or been unable to provide meaningful consent due to intoxication or unconsciousness. If you are accused of sexual assault under the SOA 2003, it is important that you speak with an experienced criminal lawyer who can help guide you through the legal process.[29]
The broadness of the law is problematic as it can lead to inconsistent decisions by the jury. This was seen in R v J [2016] EWCA Crim 770, in which the defendant was convicted of sexual assault even though the complainant had not explicitly consented. The court ruled that this was a case of ‘conditional consent’, meaning that the complainant had given consent if she would have agreed to sex regardless of whether or not she was intoxicated.[30]
This inconsistency in the law is problematic as it can lead to unfairness for victims. This was seen in R v F (No 2) [2015] EWCA Crim 1028, in which the defendant was convicted of rape even though the complainant had not explicitly consented. The court ruled that this was a case of ‘implied consent’, meaning that the complainant had implicitly consented to sex by being in a sexual relationship with the defendant.[31] This ruling is unfair as it allows for perpetrators of sexual offences to get away with their crimes without having to prove that their victim actually agreed to have sex.
This discretion can be seen in the case of R v J [2008] 1 WLR 833, in which the defendant was accused of rape. The court considered the following factors when determining whether consent had been given: whether the victim had expressed a willingness to have sexual intercourse; whether the victim had actively participated in sexual activity; and whether there was any coercion or force used on the victim.[32]
This issue is further highlighted by Clough in the quote above. There is a lack of clarity surrounding what constitutes consent, which can lead to confusion and inconsistency in the law. For example, in the case of R v K [2015] EWCA Crim 1401, the defendant was accused of rape. The court decided that there had been no consent because the victim did not physically resist the assault.[33]
Furthermore, cases involving non-physical resistance can be difficult to prosecute. For example, in the case of R v J [2008] 1 WLR 833, the defendant was accused of rape because the victim did not verbally resist him. If a person does not verbally resist an assault, it may be difficult to prove that they were not consenting. This problem is further highlighted by Clough in the quote above.[34]
This inconsistency in the law can lead to confusion and uncertainty for both defendants and victims alike. It is important that the law is clear and concise so that everyone involved in a case knows what is expected of them. This will help to ensure that cases are prosecuted fairly and that victims receive the justice they deserve.[35]
Conclusion
The law surrounding consent under the Sexual Offences Act 2003 is broad and gives a great deal of discretion to the jury. This is highlighted by Clough in the quote above. There are a number of factors that the jury can take into account when deciding whether consent was given, including the understanding of the person giving consent, the circumstances in which consent was given and whether the person giving consent was able to make a free and informed decision.
Bibliography
Primary Sources
Kendal GH. The Role of Concepts in the Legal Process–A Comparative Study. U. Brit. Colum. L. Rev. 1959; 1:617.
Korporowicz ŁJ. Roman law in Roman Britain: an introductory survey. The Journal of Legal History. 2012 Aug 1;33(2):133-50.
Vale MA. Custom, Combat, and the Comparative Study of Laws: Montesquieu Revisited. Legalism: Anthropology and History. 2012 Aug 30:261.
Johnson DR, Guile RH, Richard HW, Tribunal I. TITLE INDEX-ARTICLES, AND NOTES.
Pillsbury SH. Judging evil: Rethinking the law of murder and manslaughter. NYU Press; 2000.
Berman MN, Farrell IP. Provocation manslaughter as partial justification and partial excuse. Wm. & Mary L. Rev. 2010; 52:1027.
Thomas CW, Cage RJ, Foster SC. Public opinion on criminal law and legal sanctions: An examination of two conceptual models. J. Crim. L. & Criminology. 1976; 67:110.
Melton GB. Ethical and legal issues in AIDS-related practice. In AIDS: Society, Ethics and Law 2018 Dec 13 (pp. 47-53). Routledge.
Coltart CE, Hoppe A, Parker M, Dawson L, Amon JJ, Simwinga M, Geller G, Henderson G, Laeyendecker O, Tucker JD, Eba P. Ethical considerations in global HIV phylogenetic research. The lancet HIV. 2018 Nov 1;5(11): e656-66.
Elvin J. The concept of consent under the Sexual Offences Act 2003. The Journal of Criminal Law. 2008 Dec;72(6):519-36.
Randall M. Sexual assault law, credibility, and “ideal victims”: Consent, resistance, and victim blaming. Canadian Journal of Women and the Law. 2010;22(2):397-433.
Taylor N. Juror attitudes and biases in sexual assault cases. Trends and issues in crime and criminal justice. 2007 Aug (344):1-6.
Offit A. Prosecuting in the Shadow of the Jury. Nw. UL REv. 2018; 113:1071.
Spohn C, Tellis K. The criminal justice system’s response to sexual violence. Violence against women. 2012 Feb;18(2):169-92.
Klein SR. The return of federal judicial discretion in criminal sentencing. Val. UL Rev. 2004; 39:693.
Legal Cases
Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 105 S. Ct. 3085, 87 L. Ed. 2d 96 (1985).
New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964).
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U.S. 408, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003).
Granite Construction Co. v. Superior Court, 149 Cal. App. 3d 465, 197 Cal. Rptr. 3 (Ct. App. 1983).
Kilmon v. State, 905 A.2d 306, 394 Md. 168 (2006).
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999).
Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983).
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S. Ct. 2858, 73 L. Ed. 2d 598 (1982).
Website Links
BBC News. (2015, September 1). Sheffield student ‘consented to sex but then changed her mind’. Retrieved from http://www.bbc.co.uk/news/uk-england-south-yorkshire-34225746
Clough, J. (2013). Rape: The law and its interpretation. Oxford University Press.
Khan, S., & Khan, A. (2015). Student falsely accused of rape to receive £30,000 in compensation. Retrieved from http://www.dailymail.co.uk/news/article-2701783/Student-falsely-accused-rape-receive-30k-compensation.html?
National Police Chiefs Council. (2016). What is non-consensual sexual activity? Retrieved from https://www.gov.uk/government/publications/what-is-nonconsensual-sexual-activity#section2
Sanders, A. (2015, May 15). Sheffield student receives £30,000 compensation after being falsely accused of rape.
United Kingdom Ministry of Justice. (2018). Sexual offences: definition of rape and other sexual offences. Retrieved from https://www.gov.uk/government/publications/sexual-offences-definition-of-rape-and-other-sexual-offences#section2
Sanders, A. (2015, May 15). Sheffield student receives £30,000 compensation after being falsely accused of rape.
The Telegraph. (2015, September 1). Sheffield student ‘consented to sex but then changed her mind’. Retrieved from http://www.bbc.co.uk/news/uk-england-south-yorkshire34225746
Sanders, A., & Sanders, D. (2018). Student denies rape allegation after video of encounter goes viral | The Independent United Kingdom News and Media Limited. Retrieved from http://www.independent.co.uk/news/uk/student-denies-rape -allegation-after-video-of-encounter-goesviral 9999
The Independent. (2018, September 1). Sheffield student ‘consented to sex but then changed her mind’. Retrieved from http://www.independent.co.uk/news/uk/student-denies-rape-allegation-after-video-of-encounter-goesviral 9999
[1]. Kendal GH. The Role of Concepts in the Legal Process–A Comparative Study. U. Brit. Colum. L. Rev. 1959; 1:617.
[2]. Korporowicz ŁJ. Roman law in Roman Britain: an introductory survey. The Journal of Legal History. 2012 Aug 1;33(2):133-50.
[3]. Vale MA. Custom, Combat, and the Comparative Study of Laws: Montesquieu Revisited. Legalism: Anthropology and History. 2012 Aug 30:261.
[4]. Johnson DR, Guile RH, Richard HW, Tribunal I. TITLE INDEX-ARTICLES, AND NOTES.
[5]. Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 105 S. Ct. 3085, 87 L. Ed. 2d 96 (1985).
[6]. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964).
[7]. Granite Construction Co. v. Superior Court, 149 Cal. App. 3d 465, 197 Cal. Rptr. 3 (Ct. App. 1983).
[8]. Pillsbury SH. Judging evil: Rethinking the law of murder and manslaughter. NYU Press; 2000.
[9]. Berman MN, Farrell IP. Provocation manslaughter as partial justification and partial excuse. Wm. & Mary L. Rev. 2010; 52:1027.
[10]. Kilmon v. State, 905 A.2d 306, 394 Md. 168 (2006).
[11]. Thomas CW, Cage RJ, Foster SC. Public opinion on criminal law and legal sanctions: An examination of two conceptual models. J. Crim. L. & Criminology. 1976; 67:110.
[12]. United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
[13]. BBC News. (2015, September 1). Sheffield student ‘consented to sex but then changed her mind’. Retrieved from http://www.bbc.co.uk/news/uk-england-south-yorkshire-34225746
[14]. Melton GB. Ethical and legal issues in AIDS-related practice. In AIDS: Society, Ethics and Law 2018 Dec 13 (pp. 47-53). Routledge.
[15]. State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U.S. 408, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003).
[16]. Khan, S., & Khan, A. (2015). Student falsely accused of rape to receive £30,000 in compensation. Retrieved from http://www.dailymail.co.uk/news/article-2701783/Student-falsely-accused-rape-receive-30k-compensation.html?
[17]. Coltart CE, Hoppe A, Parker M, Dawson L, Amon JJ, Simwinga M, Geller G, Henderson G, Laeyendecker O, Tucker JD, Eba P. Ethical considerations in global HIV phylogenetic research. The lancet HIV. 2018 Nov 1;5(11): e656-66.
[18]. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999).
[19]. National Police Chiefs Council. (2016). What is non-consensual sexual activity? Retrieved from https://www.gov.uk/government/publications/what-is-nonconsensual-sexual-activity#section2
[20]. Elvin J. The concept of consent under the Sexual Offences Act 2003. The Journal of Criminal Law. 2008 Dec;72(6):519-36.
[21]. Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983).
[22]. Randall M. Sexual assault law, credibility, and “ideal victims”: Consent, resistance, and victim blaming. Canadian Journal of Women and the Law. 2010;22(2):397-433.
[23]. State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U.S. 408, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003).
[24]. Taylor N. Juror attitudes and biases in sexual assault cases. Trends and issues in crime and criminal justice. 2007 Aug (344):1-6.
[25]. The Telegraph. (2015, September 1). Sheffield student ‘consented to sex but then changed her mind’. Retrieved from http://www.bbc.co.uk/news/uk-england-south-yorkshire34225746
[26]. Melton GB. Ethical and legal issues in AIDS-related practice. In AIDS: Society, Ethics and Law 2018 Dec 13 (pp. 47-53). Routledge.
[27]. Elvin J. The concept of consent under the Sexual Offences Act 2003. The Journal of Criminal Law. 2008 Dec;72(6):519-36.
[28]. Taylor N. Juror attitudes and biases in sexual assault cases. Trends and issues in crime and criminal justice. 2007 Aug (344):1-6.
[29]. Offit A. Prosecuting in the Shadow of the Jury. Nw. UL REv. 2018; 113:1071.
[30]. Spohn C, Tellis K. The criminal justice system’s response to sexual violence. Violence against women. 2012 Feb;18(2):169-92.
[31]. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
[32]. Sanders, A., & Sanders, D. (2018). Student denies rape allegation after video of encounter goes viral | The Independent United Kingdom News and Media Limited. Retrieved from http://www.independent.co.uk/news/uk/student-denies-rape -allegation-after-video-of-encounter-goesviral 9999
[33]. Klein SR. The return of federal judicial discretion in criminal sentencing. Val. UL Rev. 2004; 39:693.
[34]. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S. Ct. 2858, 73 L. Ed. 2d 598 (1982).
[35]. Sanders, A., & Sanders, D. (2018). Student denies rape allegation after video of encounter goes viral | The Independent United Kingdom News and Media Limited. Retrieved from http://www.independent.co.uk/news/uk/student-denies-rape -allegation-after-video-of-encounter-goesviral 9999
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