Can the deliberate withholding of sex constitute coercive and controlling behaviour under English &amp; Welsh law? First I should clarify that this question is (fortunately) entirely hypothetical and academic, so please don't worry about me (I'm fine). I am trying to figure out a seeming conflict in the broad remit of coercive and controlling behaviour (as defined in the The Serious Crime Act 2015) and the principle of sexual consent. Though the newness of the offence means there aren't many cases on the subject, the guidance from the Cheshire Police, though hardly legally binding, indicates that it would be a crime to withhold affection in an attempt to punish one's partner. Indeed, it's easy to see how, in colloquial rather than legal terms, deliberately withholding sex could be an attempt to coerce one's partner, and abusive. The linked definition in the Serious Crime Act covers any behaviour designed to have a serious coercive or controlling effect on their partner, which is so extremely broad that deliberately withholding sex as coercive quasi-blackmail clearly seems to qualify. Yet, accepting that this abusive behaviour constitutes a crime would suggest that people in a relationship are obliged to periodically have sex, even if one of the people wishes not to (albeit for malicious reasons). That would be repugnant, and undo the precedent of R v R [1991] UKHL 12, which clarified (shockingly late) that marital rape is a crime in England and Wales. Leaving aside the practical objection that the Crown would be unlikely to find a prosecution for just withholding sex as in the public interest, in this conflict of laws, which "wins"? Both outcomes seem unappealing: one lets off emotional abusers and the other forces people to have sex against their will.
TL;DR No Context Let's look at what the Act actually says: 76 Controlling or coercive behaviour in an intimate or family relationship (1)A person (A) commits an offence if— (a)A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive, (b)at the time of the behaviour, A and B are personally connected, (c)the behaviour has a serious effect on B, and (d)A knows or ought to know that the behaviour will have a serious effect on B. ... (4)A’s behaviour has a “serious effect” on B if— (a)it causes B to fear, on at least two occasions, that violence will be used against B, or (b)it causes B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities. ... And let's look at what the Cheshire Police actually say: You/they may be in an emotionally abusive relationship if your/their partner: ... Punishes you by withholding affection ... You/they may be in a sexually abusive relationship if your/their partner: ... Has ever forced or manipulated you into to having sex or performing sexual acts ... Demands sex when you're sick, tired or after beating you ... Ignores your feelings regarding sex. Discussion The Act requires the behavior to be engaged in &quot;repeatedly or continuously&quot; and it must have &quot;a serious effect&quot;, meaning it must cause &quot;serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities&quot;. The withholding of sex of itself does not have &quot;a serious effect&quot; as defined. As part of a broader pattern of emotional &quot;controlling or coercive behaviour&quot; within the broad context of &quot;withholding affection&quot; it could be a factor in evidence but the law recognizes an absolute right for anyone at any time to refuse sex (Sexual Offences Act 2003 s4). The latter part of the Cheshire Police's advice draws from this.
As someone with ties to the "foreign" community in the United States, I see these "marriages of convenience" from time to time. In their most "legitimate" form, the couple will move to the same address and "technically" live together, but without consummating the marriage so that it can later be legally annulled. American immigration authorities counter this by asking each spouse about the other's underwear (literally!). Some "marriages of convenience" are legal, insofar as they technically conform to the marriage documents, e.g. regarding "co habitation," even while violating the spirit of the law. Others don't. Your best chance of attacking such "marriages" is not regarding the marriage itself (basically only the couple can decide what constitutes a valid marriage), but rather "compliance" with the marriage documents. That's something any law enforcement officer can understand.
There are several misunderstandings here. First of all, the US exclusionary rule applies only to evidence gained by the police, or by people acting as agents of the government, and not always to them. Secondly it applies only in criminal cases. The question does not say which state this would be in, and these are largely matters of state law, so it makes a difference. But I don't know of any state where taking a video without explicit consent, in a place where the person has a right to be, is a crime. In some states it would not even be a tort. If a video is taken without the subject's consent, that may be an invasion of privacy, and the subject might be able to sue (not "file charges). In such a case the video itself would absolutely be put in evidence, and if it recorded verbal permission to take the video, the case would be promptly dismissed, quite possibly with sanctions for a frivolous lawsuit. Even if the video were taken by a police officer, and was presented as evidence in a criminal case, the office could testify to the verbal permission. That would be enough for the judge to view the video as part of a suppression hearing (which is not before a jury). If the judge saw and heard verbal permission to take the video, that would be an end to the motion to suppress, unless it was claimed that the permission was somehow coerced or faked, and evidence supported such a claim.
I know of no laws at the federal or state level that explicitly extend their protection to poly relationships. However, any law that purports to outlaw a polyamorous relationship among consenting adults should be looked at very skeptically, as it would likely be found unconstitutional under Lawrence v. Texas, 539 U.S. 558 (2003): The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. While that case dealt with homosexual relationships, it seems unlikely that the courts would conclude that heterosexual couples, throuples, etc., are entitled to less protection. Adultery laws exist in many jurisdictions, and many of them have survived constitutional challenges. But as far as I know, all those challenges relied on legal principles and precedents -- in particular, Bowers v. Hardwick, 478 U.S. 186 (1986) -- that Lawrence explicitly overruled. In this regard, I would not expect anyone in a polyamorous relationship to encourter meaningful legal jeopardy as a result of that relationship, assuming that the relationship(s) were otherwise legal and out in the open. If A is unaware of her spouse's relationship with C, for instance, that could cause problems in a divorce proceeding. I don't know of any legal options specifically designed for this sort of arrangement, but the more interconnected and interdependent these groups are, the more likely it becomes that some sort of written agreement would become worthwhile -- not as a response to legal danger arising from the polyamorous nature of the relationship, just to address the fact that someone is eventually going to fall short, potentially causing problems for the whole group. There are many lawyers who specialize in LGBT issues, and I'd imagine that some of them would be able to provide more detailed advice about how to deal with this type of situation.
In many US states (and in the UK), statutory rape is a strict liability offense. This means that there is no intent requirement at all; the only allowable defenses are those that negate the actual act (there was no sex, the person was of age, or sometimes that the action was not a conscious or voluntary action), it falls within a statutory exception to the crime, or there is an applicable defense that has nothing to do with intent. Many general defenses do not apply to strict liability crimes; in particular, "I thought X when Y was true" tries to show there was to intent to commit the crime, which is irrelevant. In Michigan (where the crime took place), statutory rape is evidently such an offense. That throws some standard defenses into doubt, because anything based on negating criminal intent doesn't matter. However, Michigan does specifically say that it is not criminal to have sex with a person under 16 if they are your legal spouse; this is a very common exception to statutory rape laws. So, marriage is a way to not risk jail for statutory rape in Michigan. However, things do vary by state. In Indiana, it is specifically a defense that the defendant had a reasonable belief that the victim was over the age of consent (unless it was a forcible rape).
(I am not your lawyer. I am not here to help you. If you are reading this because someone has died, please stop and instead read the Scottish Courts and Tribunals guide to dealing with a deceased's estate in Scotland, or contact a solicitor.) Yes, in general. Section 1 of the Wills Act 1963, which is in force in Scotland, specifies that "[a] will shall be treated as properly executed if its execution conformed to the internal law in force in the territory where it was executed." Furthermore, Section 4 states that "[t]he construction of a will shall not be altered by reason of any change in the testator’s domicile after the execution of the will." "Construction" here refers to interpreting the language and effect of the will. So if the will was validly executed in England, it should also be in force in Scotland, and a Scottish court will give it the same meaning it would have had under English law. Furthermore, the same rule of validity seems to apply in both England and Scotland: Wills Act 1837 section 9. There may be other Scottish laws affecting the disposition of the estate that differ from English law. Relevant statutes include Succession (Scotland) Act 1964, section 21A, which seems consistent with Wills Act 1963. (I am trained in U.S. rather than English or Scottish law; I'm trusting the accuracy of the UK's excellent online legislation archive for the proposition that the statutes cited are in force in Scotland. I haven't checked the case law for contrary interpretations.)
canada Avoiding an overly literal reading of your assertion that &quot;both sides consent&quot; The actus reus of sexual assault is sexual touching without the consent of the complainant. In your scenario, you say that &quot;both sides&quot; consented. If this is truly the case, then there is no sexual assault. But I don't think you meant to say this. As I explain below, in order to consent, A must not have been mistaken about the identity of B: A could not have thought that B was C. If she was mistaken, as you assert in the title and in the second paragraph, then she was not consenting at law in Canada. Thus, I will assume you have used &quot;consent&quot; more colloquially, and move on to assess the scenario in which A merely &quot;consented&quot; in the sense that she was not physically or otherwise coerced into the physical acts. Can mistaken identity result in sexual assault? Yes In your scenario, where A thought B was C, the actus reus of sexual assault has occured: sexual touching without A's subjective consent. This is because consent is linked to the identity of the partner (see R. v. Barton, 2019 SCC 33 at para. 88). See also R. v. Hutchinson, 2014 SCC 19 at para. 57-58, 63: a complainant’s mistaken belief about the identity of the partner or the sexual nature of the act — whether or not that mistake is the result of a deception — will result in no consent under s. 273.1(1) of the Criminal Code.&quot; ... if a complainant agrees to sexual activity with A, who is a specific individual known personally to her, she is not agreeing to sexual activity with B ... the Ontario Court of Appeal in R. v. G.C., 2010 ONCA 451, 266 O.A.C. 299, leave to appeal refused, [2010] 3 S.C.R. v, adopted this approach and held that the complainant’s belief that the partner was her boyfriend when it was in fact his identical twin resulted in no consent to the “sexual activity in question” under s. 273.1 of the Criminal Code. (See also R. v. O.A., 2013 ONCA 581, 310 O.A.C. 305.) Since A was mistaken about the identity of the partner, there was no consent. B may very well have a defence available: mistaken belief in communicated consent (R. v. Barton). This defence asserts that the accused did not possess the mens rea of sexual assault (which is knowing of the lack of consent, or being reckless as to the lack of consent). This defence asserts that, despite A not consenting, B believed that A did consent. This was the attempted defence in G.C. and O.A., cited above. For this defence to be successful, B's belief in A's communicated consent must be based on reasonable steps taken by B to ascertain consent. Whether the steps taken by B were reasonable depends on what was known to B at the time. the accused must take steps that are objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time In your scenario, you have not asserted that there is anything known to B about &quot;similar facial characteristics [he shares] with A's boyfriend.&quot; However if it is well-known to B that he looks like C, and depending on how similar the features are, and depending on what B knew about A's ability to discern the difference between B and C this might put an obligation on B to affirmatively confirm with crystal clear language that A knows that B is not C, failing which, he would not have the defence of mistaken belief in communicated consent. For example, in G.C. (the identical-twin case), &quot;[t]he trial judge recited the relevant facts of that night known to the appellant and concluded that without doing more than he did to make his identity perfectly clear to the complainant, the appellant could not be said to have taken reasonable steps necessary to ascertain that the complainant was consenting.&quot; Anticipating comments that will always come up about evidence: this answer intentionally skips over questions like &quot;how would you prove X in court.&quot; This answer only says what the law is and what would have to be proven. If you would like to read about evidence and how to prove facts in court, please see this answer to the question How do you prove a fact at issue in litigation?
In the UK, no offence is committed, however many public locations cite the Data Protection Act 1998 as a reason to stop people taking pictures. DPA does not mention this topic at all, and is a red herring (however informing the location of this is unlikely to help, I have discovered) In fact, in the UK, the only laws that appear to exist cover either specific locations and properties (eg military installations) or using photography to take pictures of individuals in areas where they have an expectation of privacy. The Photographer's Rights Guide published by digitalcameraworld in 2012 is still current as far as I can see. It has this specific guidance: Photographers Rights: Taking Pictures of People in Public Are you breaking any law when you’re taking pictures of people in public? Probably not, but the position under UK law is uncertain. There are currently no general privacy laws under UK law, but the UK courts must take into account the European Convention on Human Rights, which gives everyone the right to respect for their private and family life. As this is an area of law that has been developing rapidly over the last few years, it is hard to be certain what will constitute an infringement. The key issue is whether the place the image is taken is one where a person would have a reasonable expectation of privacy. For example, it has been suggested that the right of privacy of a child could be infringed by publishing a photo of them with their parents in a public street. It is therefore advisable to be careful when taking photos intended for publication, even where the subject matter is in a public place. Failure to obtain a model release for the use of an image will certainly make it harder to sell the picture to stock libraries. Photographing children The same laws apply to adult and child subjects, but a child does not have the legal capacity to consent and a parent or guardian must therefore do so on their behalf. Be aware that schools, leisure centres and places where children and adults gather usually have their own photography restrictions. Although decent photos of children (see our tips for better pictures of babies, children and teenagers) taken in a public place may be fine for non-commercial use, seek permission from the child’s parents or guardians and don’t shoot covertly with a long lens. For commercial images, you’ll need to get a model release signed by the parents. Also read the section on the powers of police and security guards.