R

Question 1

Rape

Answer 1

S1 Sexual Offences Act 2003

Question 2

Rape level of offence

Answer 2

Indictable

Question 3

Rape definition

Answer 3

D commits an offence if he intentionally penetrates the mouth, anus or vagina of another person with his penis and they do not consent to the penetration and D does not reasonably believe that they consent.

Question 4

Reasonable belief

Answer 4

Must show the victim did not consent at the time and D did not reasonably believe they consented
Whether Ds belief is reasonable will be determined by having regard to all the circumstances
Does not require D to have positively taken steps to ascertain whether V consents (i.e. discuss) but this may be taken into account by the jury
Test would be:
Did D genuinely believe V consented? If so, did D reasonably believe it?

Question 5

He

Answer 5

Says he
Can only be a man as it requires a penis
A woman could encourage or assist but not guilty as a principal offender

Question 6

What must D penetrate for rape?

Answer 6

Vagina, anus or mouth

Vagina includes vulva or outer genitals

Question 7

Penetration

Answer 7

Penetration is a continuing act
Covers from entry to withdrawal
If consent is withdrawn and D carries on, it will be rape

Question 8

Ejaculation

Answer 8

Not required

But it can help prove the actus reus as it is forensic evidence

Question 9

Consent definition

Answer 9

S74 Sexual Offences Act 2003

A person consents if he agrees by choice and has the freedom and capacity to make that choice

Question 10

Consent must be true consent

Answer 10

Must not be induced by fear or fraud
If consent is given in a gun to head type situation and the person does not have any real choice, it will not be true consent

Question 11

Must have the capacity to consent

Answer 11

V will not have had capacity to consent by choice if their understanding and knowledge are so limited that they are not in a position to decide whether or not to agree
E.g. those with learning difficulties
Do they really understand what is happening and what they are agreeing to?

Question 12

Withdrawing consent

Answer 12

Consent can be withdrawn at any point
The act must stop
If it doesn’t, it will be rape

Question 13

What about consent if D has a sexual disease/condition e.g. HIV?

Answer 13

If D does not mention his condition or is not asked then it is not rape.
If D assures V that he does not have a disease then it could be rape.

Question 14

Conditional consent

Answer 14

3 circumstances where consent is vitiated:
V only consents to sex with a condom
V consented to sex if D withdrew and did not ejaculate
D deceived V into thinking they were the opposite gender

Question 15

Evidential presumptions

Answer 15

S75 SOA 2003
If it is proved that D carried out the relevant act in relation to certain specified sexual offences (e.g. rape) and that any of the below circumstances existed and D knew they existed, it will be presumed that V did not consent.
D will then have to satisfy court that this presumption should not be made.

Circumstances -
Violence was used against V immediately before or at the time that V consented.
Threats of violence to V or family.
V was kidnapped by D.
V was asleep or unconscious.
V was unable to communicate due to disability.
V was under the influence of drugs they did not consent to taking e.g. date rape drugs.

Question 16

Conclusive presumptions

Answer 16

S76 SOA 2003
If proved D cannot argue against it, unlike evidential presumptions.
If it is proved that D carried out the relevant act and that any of the below circumstances existed and D knew they existed, it will be conclusively presumed that V did not consent and D did not believe that V consented.
Circumstances -
D initially deceived V as to the nature or purpose of the relevant act (e.g. doctor saying its for a medical examination but it is actually for his sexual gratification).
D intentionally induced V to consent by impersonating someone known to V (e.g. twins swap to have sexual activity with the other twins partner pretending to be them).

Question 17

Consent when V is intoxicated

Answer 17

Drunken sex is not necessarily rape
It depends on how it has come to be and whether the person had the capacity to make that choice
If through drink a woman has temporarily lost her capacity to choose whether to have sexual activity she would then not be consenting