Rape and Issues of Consent

Question 1

What is rape?

Answer 1

Sexual Offences Act 2003, s1
(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

Question 2

What is the sentence for rape?

Answer 2

Triable on indictment
Life imprisonment

Question 3

Who can commit rape?

Answer 3

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 or someone with a penis. A transgender male with a surgically attached penis can commit rape.

Question 4

Can a transgender person commit rape?

Answer 4

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 (s79(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

Question 5

Can women be guilty of encouraging or assisting? Case?

Answer 5

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])

Question 6

What orifices constitute rape?

Answer 6

It can be committed if D penetrates the vagina, anus or mouth of V 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.

Question 7

What must you show in terms of consent to prove rape?

Answer 7

Show that V did not consent at the time and D did not reasonably believe he consented. The wording is supported by the further provision that whether or not D’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

Question 8

What intention must you show to prove rape?

Answer 8

Must show D intentionally penetrated the vagina, mouth or anus of the victim with his penis.

Question 9

What type of act is penetration? When does it begin and end?

Answer 9

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 s75 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.

Question 10

What is consent?

Answer 10

Sexual Offences Act 2003, s74
‘A person consents if he agrees by choice, and has the freedom and capacity to make that choice’
Issue of consent is a question of fact
Consent must be ‘true’, not a submission induced by fear or fraud. If the choice is not a genuine exercise of free will then he hasn’t consented

Question 11

What is the purpose of capacity in the definition of consent? Case?

Answer 11

Valid consent can only be given by a person who has capacity to give it
SOA doesn’t 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))

Question 12

What sort of people may lack the capacity to give consent?

Answer 12

Children
Those with a mental or physical disability
Anyone who’s capability to consent is temporarily taken away eg: when someone is intoxicated.

Question 13

What is the age of consent to sexual activity? What if someone below the age of consent appears to give factual consent?

Answer 13

Age of consent is 16 years old.
Even if they appear to give consent factually, it will not be given legally so will not prevent an offence.

Question 14

What is true consent?

Answer 14

Consent which is given freely and not induced by fear or fraud.
It must be the genuine exercise of free will and not submission due to fear of the consequences of refusal.

Question 15

Can consent be withdrawn? Case?

Answer 15

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]) can amount to a sexual offence provided all the other ingredients are present

Question 16

What is conditional consent?

Answer 16

When someone consents on the basis of something happening/not happening eg: wearing a condom, not having an STI or not ejaculating.

Question 17

What was held in the case of Lawrence?

Answer 17

Successfully appealed against his conviction for rape in a situation where he had lied about having a vasectomy.
This case contrasts earlier cases where court held if a woman consents to intercourse on the basis that the man wears a condom then fails to do so- this is rape.
COA took view that in the condom case there was a physical condition (wearing of condom) whereas in Lawrence case V agreed to intercourse without any physical restrictions.
It will also be rape if D says he will not ejaculate inside V, but then does so.

Question 18

Is non-disclosure of STD’s to a victim an issue of consent?

Answer 18

R v McNally [2013]- COA observed that B was not an authority that HIV status could not vitiate consent. B (case above) 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

Question 19

Is non-disclosure of STD’s to a victim an issue of consent? Case?

Answer 19

R v B [2006] - COA 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. Man allegedly raped a woman he met outside a nightclub. When arrested he told officers he was HIV-positive, which he did not disclose to V prior to sexual intercourse. At trial, judge directed this non-disclosure was relevant to issue of consent. On appeal, court stated this is not the case and the consent issue for a jury to consider was whether or not V consented to sexual intercourse with a person suffering from an STD

Question 20

What is the current stance on STD and consent?

Answer 20

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 OAPA 1861 (s. 20 or s. 18) (R v Dica and R v Konzani
- if the accused positively assures the complainant that he is not HIV-positive, this could constitute rape (R v McNally)

Question 21

What are the 3 judgments by HC and COA in which consent to sexual activity might be vitiated because the condition upon which consent was given was breached?

Answer 21

1. Assange v Sweden [2011]
2. R (F) v DPP [2013]
3. McNally v R [2013]

Question 22

Assange v Sweden [2011]

Answer 22

Divisional Court considered the situation where A knew B (the complainant) would only consent to sexual intercourse if he used a condom. Court rejected the view that the conclusive presumption in s76 SOA 2003 would apply and concluded that the issue of consent would be determined under s74 rather than s76 and stated that it would be open to jury to hold that if B had made it clear that she would only consent to sex if A used a condom, then there would be no consent if, without B’s consent, A did not use a condom or removed/tore it. A’s conduct in having sex 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

Question 23

R (F) v DPP [2013]

Answer 23

High Court examined application for judicial review of the refusal of 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 common-sense 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

Question 24

McNally v R [2013]

Answer 24

Concerned with material deception of B by A. Relationship between 2 girls which, over 3 years, developed from internet relationship to an ‘exclusive romantic relationship’ that involved meeting and having sex. From the start, A presented herself to B as a boy, a deception 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 D 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

Question 25

Case (COA)- can lying about fertility negate consent?

Answer 25

R v Lawrence [2020]- Lawrence convicted on 2 counts of rape on basis that his false representation to complainant that he had had a vasectomy vitiated her consent- she only agreed to unprotected sex based on the representation, otherwise would have insisted on a condom. Appeal allowed. Court stated a lie about fertility was different from all 3 cases above. Complainant agreed to sex with L without imposing any physical restrictions. She agreed to penetration of her vagina and ejaculation without condom. In doing so, she was deceived about the nature or quality of the ejaculate and therefore of the risks and possible consequences of unprotected sex. The deception was not related to the physical performance of the sexual act but to risks/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

Question 26

What do s75 and s76 allow?

Answer 26

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)

Question 27

What is s75?

Answer 27

SOA 2003, s75- evidential presumptions about consent
(1) If in proceedings for an offence to which this section applies it is proved—
(a) that D did the relevant act,
(b) that any of the circumstances specified in subsection (2) existed, and
(c) that D 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

Question 28

What is the purpose of s75?

Answer 28

Means that if prosecution can show D carried out the relevant act in relation to certain specified sexual offences (eg: penetration in rape) and that any of the circumstances below existed and D knew they existed, it will be presumed that V did not consent. Then D will have to satisfy the court, by reference to evidence, that this presumption should not be made

Question 29

What is the purpose of s75(2)?

Answer 29

Sets out 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 D 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 D 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

Question 30

What is s76 SOA 2003?

Answer 30

(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 D did not believe that the complainant consented to the relevant act.
(2) The circumstances are that—
(a) D intentionally deceived the complainant as to the nature or purpose of the relevant act;
(b) D intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant

Question 31

What is the purpose of s76?

Answer 31

Deals with situations where D either misrepresents the nature of purpose of what he is doing eg: pretending that inserting a finger into V’s vagina is for medical reasons. s76 requires a misunderstanding was created by D and it was done deliberately. Once proved beyond reasonable doubt that these circumstances existed, then it is conclusive and D cannot argue against them

Question 32

Case- s76 in practice

Answer 32

R v Bingham [2013]- 7 counts of causing his gf to engage in sexual activity without consent under s4 SOA 2003, B, using pseudonyms, established an online Facebook relationship with his gf so as to persuade and then blackmail her into providing him with photos of her engaging in sexual activity. COA held that the reliance at trial upon s76 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 s74 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

Question 33

Case- s76 in practice (different verdict)

Answer 33

R v Devonald [2008] (another s. 4 offence)- court held s76 applied; it was open to the jury to conclude that the complainant was deceived into 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 gf who was teaching him a lesson. ‘Purpose’ was 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)

Question 34

What 2 situations does s76 deal with?

Answer 34

It is important to emphasise the fact that s76 deals with situations where D:
- 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 does not relate to either of the aims, then s76 has NO application