Rape

Question 1

Actus Reus

Answer 1

D penetrated V’s vagina, anus or mouth with his penis and at the time V did not consent to the penetration (penetration must be penile)

Question 2

Why was the old law reformed?

Answer 2

The 2003 act was ‘an Act to modernise Victorian laws on sex offences and to provide a clear, coherent and effective set of laws that increase protection, enable the appropriate punishment of abusers and ensure that the law is fair and non-discriminatory’

Question 3

Penetration

Answer 3

Section 79 of SOA 2003 says that penetration is a continuing act from entry to withdrawal (R v Kaitamaki)

Also says that the vagina includes gender reassignment surgery

Question 4

Three possible routes to determining V’s non-consent

Answer 4

CONCLUSIVE presumptions about non-consent

EVIDENTIAL/ REBUTTABLE presumptions about non-consent

A GENERAL definition of consent

Question 5

Conclusive presumptions about non-consent

Answer 5

D intentionally deceived V as to the nature of purpose of the relevant act

R v Flattery - pretended he was performing surgery but raped V

R v Jheeta - messages from police

R v Linekar - V (prostitute) did not get payed claimed rape but court said not deception

Question 6

Evidential/rebuttable presumptions against consent

Answer 6

V was being threatened and feared violence

R v Dagnall - V dragged off road and begs not to be killed

R v Taran - raped at gun point

R v Larter - victim unconscious

R v David T - kidnap

Question 7

Drug assisted rape

Answer 7

R v Malone - victim was too drunk to consent

R v Bree - drunken consent it still consent

Question 8

A general definition of consent

Answer 8

V consents if she agrees by choice and has the freedom and capacity to make that choice

Question 9

Freedom

Answer 9

R v Olugboja - raped twice, submitted through fear

R v Jheeta - fear of police

R v Kirk - abuse over years in family setting (submission through fear)

Question 10

Choice

Answer 10

R v McNally - deception over gender

Assange v Swedish Prosecution Authority - consent not valid because of lies over condom

Question 11

Mental capacity

Answer 11

V’s voluntary intoxication
R v Bree - drunken consent is still consent

R v Kamki - victim was asleep

Question 12

Mens Rea

Answer 12

D intentionally penetrated and either intended V that V did not consent or did not reasonably believe that V consented