Rape - Common Law - Pre 1st Dec 2010

Question 1

Actus Reus

Answer 1

Lord Advocates reference (no1 of 2001) redefined the law on rape & endorsing earlier authorities as below.

A man has sexual intercourse with a woman without her consent. There must be penetration of her vagina by his private member (although full penetratin is not necessary (Jamieson v HM Advocate 1994) and emission of semen is unnecessary (Archibald Robertson 1836).

A woman can commit this crime on the basis of concert or art and part

Question 2

Mens Rea

Answer 2

Lord Advocates reference (no1 of 2001)

Knowledge by the accused that the woman is not consenting to the act of penetrative sexual intercourse

OR

Recklessness as to whether she is consenting

Reckless is failing to think about or indiffernece as to whether the woman is consenting.

If belief in consent was based on reasonable agrounds and belief was therefore reasonable - acquit.

If tthe honest belief in consent, even though the grounds advanced by the accused for that belief are not accepted as being reasonable - acquit- it is subjective recklessness which is needed for Rape conviction not objective recklessness as per Lord Advocates reference (no 1 of 2001)

Question 3

Not COMMON LAW rape where:

Answer 3

A woman consents to sexual intercourse having been deceived by criminal conduct impersonating her husband. This is even though she may not have consented if she had known the man’s true identity. (might be indecent assault and WILL BE rape under statute by s7(3) Criminal Law (consolidation) (Scotland) Act 1995 as amended- NB now repealed by 2009 Act but if charged under old law due to date of offence, presumably this would still apply. S7(2)(b) also covers statutory offence where by false pretences or false representations procures any woman or girl to have any unlawful sexual intercourse in any part of the world

Question 4

Rape of wife while living together

Rape of wife when living apart

Answer 4

Yes - Stallard v HM Advocate

Yes - HM Advocate v Duffy

Question 5

Alcohol or Drugs

Answer 5

Aim to render a woman incapable of providing consent by plying with drink or drugs and then has non consensual sexual intercourse = common law rape. (Lord Advocate Ref (no1 2001)

Rape too where intercourse with a woman so overcome with effects of drink or drugs so that she could not consent.(Lord Advocate Ref (no1 2001)

Statutory offence if: applies or administers to, or causes to be taken by, any woman or girl any drug, matter or thing, with intent to stupefy or overpower so as thereby to enable any person to have unlawful sexual intercourse with such woman or girl- under s7(2)(c) Criminal Law (consolidation) (Scotland) Act 1995 as amended- NB now repealed by 2009 Act but if charged under old law due to date of offence, presumably this would still apply.

Question 6

Sexual intercourse with a girl under 13

Answer 6

Crime punishable by life imprisonment S5(1)Criminal Law (consolidation) (Scotland) Act 1995 (now repealed by 2009 Act)

Attempted - 10 years or 2yrs??? imprisonment on indictment and 3 months if summary complaint. s5(2) - act as orginally enacted says 2 years but may have been subsequently amended to 10?? CLT book says 10.

Question 7

Sexual intercourse with girl 13 - 16

Answer 7

Crime punishable by 10 yrs or 2 ??? see above imprisonment on indictment , 3 months on summary complaint.
S5(3)Criminal Law (consolidation) (Scotland) Act 1995 (now repealed by 2009 Act)

Attempted - 10 years imprisonment or 2??? on indictment and 3 months if summary complaint. S5(3)Criminal Law (consolidation) (Scotland) Act 1995 (now repealed by 2009 Act)

Question 8

Sexual intercourse with a female with learning difficulties

Answer 8

Probably common law rape - Sweenie suggests that intercourse with an “idiot woman” would probably be rape (Macdonald p 119) but Lord Advocates Refer No 1 of 2001 now makes it clear that in the case of females who are incapable of giving consent then intercourse amounts to rape. Presumably this will overlap with common law offence of “Clandestine injury to women” (ie having carnal knowledge of a woman where the victim is not able to consider whether or not to consent but there is no element of oforce or overcoming of hte will.

NB there are statutory offences now for intercourse with a mentally disordered or subnormal woman - See The Mental Health (Scotland) Act 1984 s 106 & 107.

s106 protects: girls/women in state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning - offence to have sexual intercourse with such a woman or to procure it etc.

defence:he did not know and had no reason to suspect that the woman in respect of whom he is charged was protected by the provisions of this section.

S107 - offence for owner or employee of a hospital or nursing home to have intercourse with an in=patient or an outpatient on the premises with a patient being treated for a mental disorder

defence:he did not know and had no reason to suspect that the woman in respect of whom he is charged was suffering from a mental disorder.