Sexual Offences Notes

CRIMINAL LAW — TOPIC 5 — SEXUAL OFFENCES

RAPE

s.1 Sexual Offences Act 2003

1. A person (A) commits an offence if—

1. He intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

2. B does not consent to the penetration, and

3. A does not reasonably believe that B consents.

2. Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

Definition:

• Actus Reus: D penetrates the vagina, anus, or mouth of the victim with his penis and the victim did not consent to the penetration.

• Mens Rea: D did not reasonably believe that V consented to the penetration.

ACTUS REUS

1. Who can commit rape?

Only a man can commit rape — it requires penetration with a penis. Under s.79(3) of the SOA this includes surgically constructed penises:

3. References to a part of the body include references to a part surgically constructed (in particular, through gender reassignment surgery).

It is possible for a woman to commit other sexual offences, or to be an accessory to rape, but she cannot commit it.

Husbands and wives: marital rape could not be committed until 1991 (and the House of Lords decision in R v R), but it is now recognized in the statute that married couples can commit rape.

2. Who can be the victim of rape?

Pretty clear from the statute that this can be a man or a woman; s.79(3) also means that a vagina can be a surgically constructed vagina.

3. What is penetration?

To amount to rape, the only act that is sufficient is penetration of the anus, vagina, or mouth with a penis. Penetration of other body parts (ear? Pretty hard surely) would not amount to rape. The Act leaves penetration its ordinary meaning and it’s a question of fact for the jury whether or not it has occurred.

AR / MR coincidence: s.79(2): “penetration is a continuing act from entry to withdrawal” —this means that if V withdraws her consent after the initial penetration, but the D does not withdraw in a reasonable period of time, this can be rape (because, although he did not have the MR at the start of the sex, he had it at the time he failed to withdraw). What exactly a reasonable length of time is is a question for the jury.

WHAT IS CONSENT (FOR THE PURPOSES OF THE AR)?

Questions over the V’s consent arise in two contexts in relation to rape.

• First, as a matter of the actus reus, it must be shown that the V did not in fact consent to the penetration.

• Second, as a matter of the mens rea it must be shown that the defendant did not reasonably believe that the V consented.

Here we’re dealing with the first question (see below for the MR).

Definition of consent: s.74: “a person consents if he agrees by choice, and has the freedom and capacity to make that choice.”

PQ GUIDE:

1. Conclusive presumptions: deception as to the nature or purpose of the act

s.76 Conclusive presumptions

1. If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed—

1. that the complainant did not consent to the relevant act, and

2. that the defendant did not believe that the complainant consented to the relevant act.

   1. The circumstances are that:

1. the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;

2. the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.

These are conclusive presumptions and cannot be rebutted — if the presumption is made out the D will be guilty of rape (both the AR and MR are proved at that point).

1(a) deceived as to the nature and purpose of the act

For this to apply, the following need to be shown:

1. There must be a deception: if the V is mistaken as to the nature and purpose of the act, but not because of D’s deception, the presumption does not apply (although the jury would still be able to find an absence of consent under the normal meaning). NB: the deception does not have to have caused consent; so if the V was deceived, but would have slept with D anyway, the presumption is still established (Note: although such a case would never, in reality, make it to court).

2. The deception must be intentional: clear from the wording of the statute.

3. The deception must go to the nature and purpose of the act: this has been explored in the case law.

A good example of a case where the V did not understand the nature and purpose due to D’s deception was the following, decided under the old law:

Williams [1923]

Facts: a singing teacher persuaded his pupil (aged 16) to allow him to do something to improve her breathing. He proceeded to have sex with her.

King’s Bench: D was convicted of rape; that she consented to the breathing technique was immaterial — that was an act of a different nature to the one performed by the D.

There are three leading cases on ‘nature and purpose’ under the new law:

R v Jheeta [2007]

Facts: D and V had been involved in a sexual relationship for some time, when V started to receive threatening text messages and telephone calls. V, who was unaware that D was sending the messages, confided in D and allowed him to contact the police on her behalf. He did not do so but over a long period sent her text messages purporting to be from the police and he obtained 700 from V for security protection, which he pretended to arrange. Eventually V wanted to end the relationship, but D (over a 4-year period) sent her messages ‘from the police’ telling her that she should have sex with him and that she would be liable to a fine if she did not. Eventually V went to the police, D was arrested was convicted of rape.

Court of Appeal: s.76(2)(a) only applied to the nature and purpose of the act (i.e. intercourse); since the V had been deceived not about the nature or purpose of the act of intercourse, but about the situation in which...

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