Rape - Statute - On or after 1st Dec 2010

Question 1

Rape (Statute)

Answer 1

Sexual Offences (Scotland) Act 2009 - Applies only to offences committed on or after 1st Dec 2010.

If can’t ascertain date of rape - Likely will be charged under both the Act and the law in force prior to the Act. If at trial the date can’t be ascertained the accused is liable to be convicted under the Act unless the max penalty for the offence is less under the prior law - in which case it will be guilty under the prior law. (s53)

Question 2

Rape

Answer 2

Intentional or Reckelss

Penile penetration (to any extent - s1(1)) of

Complainer’s vagina (includes vulva s1(4)), anus or mouth

Without consent (consent = free agreement s12)

Without any reasonable belief that there has been consent.

Penis and Vagina include surgically constructed see s1(4) and vulva.

Question 3

s1(2) Penetration

Answer 3

A continuing act from entry until withdrawal

The offence is committed where the complainer initially consents but penetration continues after consent is revoked as the continuing act is from the point in time that consent is revoked until withdrawal (s1(3)

Question 4

Consent - s12

Answer 4

Free Agreement

Question 5

Eg of when consent not present s13 (2) (list not exhaustive)

Answer 5

(a) where the conduct occurs at a time when B is incapable because of the effect of alcohol or any other substance of consenting to it,
(b) where B agrees or submits to the conduct because of violence used against B or any other person, or because of threats of violence made against B or any other person,
(c) where B agrees or submits to the conduct because B is unlawfully detained by A,
(d) where B agrees or submits to the conduct because B is mistaken, as a result of deception by A, as to the nature or purpose of the conduct,
(e) where B agrees or submits to the conduct because A induces B to agree or submit to the conduct by impersonating a person known personally to B, or
(f) where the only expression or indication of agreement to the conduct is from a person other than B.

Question 6

S14 - asleep or unconscious

Answer 6

incapable of consenting to any conduct

Question 7

s15 - consent to particular conduct does not imply consent to other conduct

Answer 7

and that consent can be withdrawn at any time and if continues beyond consent then it continues without consent.

Question 8

s17(2) - Mental disorder

Answer 8

A mentally disordered person is incapable of consenting to conduct where, by reason of mental disorder, the person is unable to do one or more of the following— .

(a) understand what the conduct is, .
(b) form a decision as to whether to engage in the conduct (or as to whether the conduct should take place), .
(c) communicate any such decision. .
(3) In this Act, “mental disorder” has the same meaning as in section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) (and related expressions are to be construed accordingly).

Question 9

s16 - Reasonable belief

Answer 9

The absence of reasonable belief that there was consent must be proved in every case. It is for the Crown to exclude reasonable belief.

s16 -“ In determining, for the purposes of Part 1, whether a person’s belief as to consent or knowledge was reasonable, regard is to be had to whether the person took any steps to ascertain whether there was consent or, as the case may be, knowledge; and if so, to what those steps were. “

Even if no steps taken, can still have reasonable consent - it depends on the circumstances.

Question 10

Penalties

Answer 10

s48(2) - Imprisonment (max life -schedule 2) & fine on indictment but not fine alone unless a corporate body, partnership or unincorporated body.

Question 11

Alternative verdicts - if Jury acquit of rape, they can instead return guilty verdict in:

Answer 11

S50 provides power for alternative verdict - Sch 3 details those alternative verdicts to a rape charge.

Sexual assault by penetration

Sexual assault

Having intercourse with an older child

Assault at common law

Assault with intent to commit rape at common law

Assault with intent to commit the offence of rape under section 1 of this Act

Assault with intent to commit the offence of rape of a young child

Abduction with intent to commit rape at common law

Abduction with intent to commit the offence of rape under section 1 of this Act

Abduction with intent to commit the offence of rape of a young child

An offence under section 1 (incest) of the Criminal Law (Consolidation) (Scotland) Act 1995

An offence under section 2 (intercourse with step-child) of that Act]