Rape Flashcards
Rape—Sexual Offences Act 2003, s.1
- Triable on indictment
- Life imprisonment
The Sexual Offences Act 2003, s. 1 states:
(1)
A person (A) commits an offence if—
(a)
he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b)
B does not consent to the penetration, and
(c)
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.
Rape
Rape is an offence that can only be committed via the use of the penis. Therefore rape (as a principal offender) can only be committed by a man, although a woman who encourages or assists a man to penetrate another person with his penis, not reasonably believing the other person is consenting, may be convicted of aiding and abetting rape (R v Cogan [1976] QB 217). It can be committed if the defendant penetrates the vagina, anus or mouth of the victim with the penis. ‘Vagina’ is taken to include the vulva (s. 79(9)). In respect of penetration of the vagina, it is not necessary to show that the hymen was ruptured.
You must show that the victim did not in fact consent at the time and that the defendant did not reasonably believe that he/she consented. The wording is supported by the further provision that whether or not the defendant’s belief is reasonable will be determined having regard to all the circumstances (s. 1(2)). Section 1(2) does not positively require an accused to have taken steps to ascertain whether the complainant consents. However, this is something a jury will consider when considering the reasonableness of his belief. More steps are likely to be expected where there is no established relationship.
Criminal Conduct
To prove rape, you must show that the defendant intentionally penetrated the vagina, mouth or anus of the victim with his penis. Penetration is a continuing act from entry to withdrawal (s. 79(2)). The ‘continuing’ nature of this act is of importance when considering the issue of consent and the statutory presumptions under ss. 75 and 76. While it is not necessary to prove ejaculation (indeed, it is entirely irrelevant to the offence), the presence of semen or sperm may be important in proving the elements of a sexual offence. References to a part of the body (for example, penis, vagina) will include references to a body part which has been surgically constructed, particularly if it is through gender reassignment (s. 79(3)). The offence thus protects transsexuals. It also means, however, that a person who has a surgically constructed penis can commit the offence of rape.
Consent
The Sexual Offences Act 2003, s. 74 states:
For the purpose of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.
The issue of consent is a question of fact although legislation has included some specific situations which allow presumptions and conclusions to be made regarding a lack of consent.
Any consent given must be ‘true’ consent, not simply a submission induced by fear or fraud. Therefore, if the person does not have any real choice in the matter, or the choice is not a genuine exercise of free will, then he/she has not ‘consented’.
An example of how ‘true’ consent operates is the case involving PC Stephen Mitchell who committed a number of sexual offences against vulnerable women over a period of years. On one occasion, Mitchell drove one of his victims to a dirt track and told her that if she did not do as he said, he would ensure her children were taken away from her for good, and then raped her. Any ‘consent’ given by the victim could not be ‘true’ because her choice to participate in the act of sexual intercourse would not be by the genuine exercise of free will (a ‘gun to the head’-type scenario).
‘Capacity’ is an integral part of the definition of consent. A valid consent can only be given by a person who has the capacity to give it. The Sexual Offences Act 2003 does not define ‘capacity’. Common law principles that developed under the old law suggest that complainants will not have had the capacity to agree by choice where their understanding and knowledge were so limited that they were not in a position to decide whether or not to agree (R v Howard (1965) 1 WLR 13). Some people are not capable of giving the required consent—these are addressed in further sections of this chapter.
Even if freely given, consent may still be withdrawn at any time. Once the ‘passive’ party to sexual penetration withdraws consent, any continued activity (for example, penetration in rape: R v Cooper [1994] Crim LR 531) can amount to a sexual offence provided all the other ingredients are present.
In R v B [2006] EWCA Crim 2945, the Court of Appeal stated that whether an individual had a sexual disease or condition, such as being HIV-positive, was not an issue as far as consent was concerned. The case related to a man who was alleged to have raped a woman after they had met outside a nightclub. When arrested, the man informed the custody officer that he was HIV-positive, a fact he had not disclosed to the victim prior to sexual intercourse. At the original trial, the judge directed that this non-disclosure was relevant to the issue of consent. On appeal, the court stated that this was not the case and that the consent issue for a jury to consider was whether or not the victim consented to sexual intercourse, not whether she consented to sexual intercourse with a person suffering from a sexually transmitted disease. However, in R v McNally [2013] EWCA Crim 1051 (see para. 4.2.4), the Court of Appeal observed that B was not an authority that HIV status could not vitiate consent. B left the issue open and HIV status could vitiate consent if, for example, the complainant had been positively assured that the accused was not HIV-positive.p. 537↵
Keynote
So the situation with a person who is HIV-positive and is aware of his condition, is as follows:
- if the accused makes no mention of his condition, this will not be rape (R v B). However, it may constitute an offence under the Offences Against the Person Act 1861 (s. 20 or s. 18) (R v Dica and R v Konzani, at para. 2.7.14);
- if the accused positively assures the complainant that he is not HIV-positive, this could constitute rape (R v McNally).
Conditional Consent
Section 74 has been considered by the High Court and the Court of Appeal in a series of cases where apparent consent in relation to sexual offences was considered not to be true consent, either because a condition upon which consent was given was not complied with or because of a material deception (other than one which falls within s. 76 of the Sexual Offences Act 2003 (see para. 4.2.6)). The judgments identified three sets of circumstances in which the consent to sexual activity might be vitiated where the condition was breached.
In Assange v Sweden [2011] EWHC 2489 (Admin), the Divisional Court considered the situation in which A knew B (the complainant) would only consent to sexual intercourse if he used a condom. The court rejected the view that the conclusive presumption in s. 76 of the Sexual Offences Act 2003 would apply and concluded that the issue of consent could be determined under s. 74 rather than s. 76, and stated that it would be open to a jury to hold that if B had made it clear that she would only consent to sexual intercourse if A used a condom, then there would be no consent if, without B’s consent, A did not use a condom or removed or tore the condom. A’s conduct in having sexual intercourse without a condom in circumstances where B had made it clear that she would only have sexual intercourse if A did use a condom, would therefore amount to an offence.
In R (F) v DPP [2013] EWHC 945 (Admin), the High Court examined an application for judicial review of the refusal of the DPP to initiate a prosecution for rape and/or sexual assault on B by A (her former partner). ‘Choice’ and the ‘freedom’ to make any particular choice must, the court said, be approached in ‘a broad commonsense way’. Against what the court described as the ‘essential background’ of A’s ‘sexual dominance’ of B and B’s ‘unenthusiastic acquiescence to his demands’, the court considered a specific incident when B consented to sexual intercourse only on the clear understanding that A would not ejaculate inside her vagina. B believed that A intended and agreed to withdraw before ejaculation, and A knew and understood that this was the only basis on which B was prepared to have sexual intercourse with him. When he deliberately ejaculated inside B, the result, the court said, was B being deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based and, accordingly, her consent was negated. Contrary to B’s wishes, and knowing that she would not have consented and did not consent to penetration or the continuation of penetration, if B had an inkling of A’s intention, A deliberately ejaculated within her vagina. This combination of circumstances falls within the statutory definition of rape.
The third case, McNally v R [2013] EWCA Crim 1051, differs from the other two cases. Unlike Assange and F, both of which turned on an express condition, McNally was concerned with the material deception of B by A. The unusual facts considered by the court involved the relationship between two girls which, over three years, developed from an internet relationship to an ‘exclusive romantic relationship’ that involved their meeting and engaging in sexual activity. From the start, A presented herself to B as a boy, a deception she maintained throughout their relationship. Examining the nature of ‘choice’ and ‘freedom’, the court determined that ‘deception as to gender can vitiate consent’. The court’s reasoning is that while, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common-sense view, different where the complainant is deliberately deceived by a defendant into believing the latter is male. Assuming the facts to be proved as alleged, B chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by A’s deception. Demonstrating that the circumstances in which consent may be vitiated are not limitless, the court explained that, in reality, some deceptions (such as in relation to wealth) will obviously not be sufficient to vitiate consent.
In R v Lawrence [2020] EWCA Crim 971, the Court of Appeal considered whether a lie about fertility could negate consent. Lawrence had been convicted on two counts of rape on the basis that his false representation to the complainant that he had had a vasectomy vitiated her consent in that she had only agreed to unprotected sex as a result of the representation. Otherwise she would have insisted on him wearing a condom. The appeal was allowed—the court stated that a lie about fertility was different from a lie about whether a condom was being worn during sex, different from engaging in intercourse not intending to withdraw having promised to do so and different from engaging in sexual activity having misrepresented one’s gender. The complainant agreed to sexual intercourse with Lawrence without imposing any physical restrictions. She agreed both to penetration of her vagina and to ejaculation without the protection of a condom. In so doing, she was deceived about the nature or quality of the ejaculate and therefore of the risks and possible consequences of unprotected intercourse. The deception was one which related not to the physical performance of the sexual act but to risks or consequences associated with it. It made no difference to the issue of consent whether there was an express deception or a failure to disclose. The issue was whether Lawrence’s lie was sufficiently closely connected to the performance of the sexual act, rather than the broad circumstances surrounding it and, in this case, it was not. Lawrence’s lie about his fertility was not capable in law of negating consent.
Sections 75 and 76—Applicability
Sections 75 and 76 of the Sexual Offences Act 2003 allow presumptions to be made in relation to the absence of consent.
They apply to offences under:
- s. 1 (rape);
- s. 2 (assault by penetration);
- s. 3 (sexual assault);
- s. 4 (causing sexual activity without consent).
The Sexual Offences Act 2003, s. 75 states:
(1)
If in proceedings for an offence to which this section applies it is proved—
(a)
that the defendant did the relevant act,
(b)
that any of the circumstances specified in subsection (2) existed, and
(c)
that the defendant knew that those circumstances existed,
the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
Section 75—Evidential Presumptions about Consent
This means that if the prosecution can show that the defendant carried out the relevant act in relation to certain specified sexual offences (for example, penetration in rape) and that any of the circumstances below existed and the defendant knew they existed, it will be presumed that the victim did not consent. Then the defendant will have to satisfy the court, by reference to evidence, that this presumption should not be made.
Section 75(2) sets out the circumstances in which evidential presumptions may apply. They are that:
(a)
any person was, at the time of the relevant act (or immediately before it began), using violence against the complainant or causing the complainant to fear that immediate violence would be used against him/her;
(b)
any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person;
(c)
the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act;
(d)
the complainant was asleep or otherwise unconscious at the time of the relevant act;
(e)
because of the complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented;
(f)
any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.
The ‘relevant act’ for each offence covered by s. 75 will generally be obvious but is set out specifically at s. 77.
It is important to note that the circumstances set out in s. 75(2) are not exhaustive in terms of deciding when consent will be absent. There may be circumstances that fall outside the situations described in s. 75(2) where consent does not exist. For example, the case of PC Stephen Mitchell (see para. 4.2.3) did not involve any of the circumstances set out in s. 75(2) and yet he was still guilty of rape as his victim’s consent was not true consent; it was obtained by a threat to take her children away (submission). The fact that this situation does not appear in the sets of circumstances listed in s. 75(2) merely means that a presumption in relation to consent cannot be made in such a case—it does not mean that the victim consented to the activity.
Section 76 of the Sexual Offences Act 2003 states:
(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—
(a)
that the complainant did not consent to the relevant act, and
(b)
that the defendant did not believe that the complainant consented to the relevant act.
(2)
The circumstances are that—
(a)
the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
(b)
the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.
Conclusive Presumptions about Consent
These provisions deal with situations where the defendant either misrepresents the nature or purpose of what he/she is doing (for example, pretending that inserting a finger into the victim’s vagina is for medical reasons) or impersonates the victim’s partner. Section 76 requires that a misunderstanding was created by the defendant and that it was done deliberately. Once it is proved, beyond a reasonable doubt, that these circumstances existed then it is conclusive and the defendant cannot argue against them.
In R v Bingham [2013] 2 Cr App R 307 (seven counts of causing his girlfriend to engage in sexual activity without consent under s. 4 of the Sexual Offences Act 2003 (see para. 4.3.5)), B, using pseudonyms, established an online Facebook relationship with his girlfriend so as to persuade and then blackmail her into providing him with photographs of her engaging in sexual activity. The Court of Appeal held that the reliance at trial upon s. 76 was misplaced. The motive behind the conduct was sexual gratification, and there was no deception as to that (i.e. there was no deception as to the purpose of the act). The prosecution would have had forceful arguments under s. 74 on the basis that the victim only complied because she was being blackmailed. In the light of s. 76(2), it would appear that deception as to the identity of the recipient would not be sufficient as it was impersonation of a person unknown to the complainant. This case can be contrasted with R v Devonald [2008] EWCA Crim 527 (another s. 4 offence). In this case, the court held that s. 76 did apply; it was open to the jury to conclude that the complainant was deceived into p. 540↵believing he was masturbating for the gratification of a 20-year-old girl via a webcam when in fact he was doing it for the father of a former girlfriend who was teaching him a lesson. Here, ‘purpose’ has been given a wide meaning in that the deception was not as to sexual gratification, rather it was to the purpose of the masturbation (to teach the victim a lesson).
It is important to emphasise the fact that s. 76 deals with situations where the defendant:
* deceives the victim regarding the nature and purpose of the act; or
* induces the victim to consent to the relevant act by impersonating a person known personally to the complainant.
If the deception/inducement does not relate to either of these aims, then s. 76 has no application. For example, in R v Jheeta [2007] EWCA Crim 1699, the defendant deceived the complainant into having sex more frequently than she would have done otherwise. In these circumstances, the conclusive presumptions under the Sexual Offences Act 2003 had no relevance as the complainant had not been deceived as to the nature or purpose of the sexual intercourse.
Likewise, a false promise to marry made by A to B to encourage B to have sexual intercourse would not be covered, nor would a false promise to pay B in exchange for sexual intercourse.
