Sexual Offences Flashcards
Rape
Rape is the most serious of the non-fatal, sexual offences against the person.
Definition of rape is found in S1 of the 2003 Act.
1) A person commits an offence if
-he intentionally penetrates the vagina, anus or mouth of another person with his penis.
-B does not consent to that penetration, and
-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.
Sexual Offences 2003
Government’s major reform of the sex offences.
Reforms introduced because the old law was ‘archaic, incoherent and discriminatory -home office white paper Protecting the Public 2002.
After the HRA98 had incorporated the European Convention for HR it was feared that the UK law on sexual offences could be in breach of the convention and therefore desirable to reform the law to avoid legal challenges through the courts.
Actus Reus of Rape
Actus reus of rape is where a man has sexual inter course with a man or a woman without that persons consent.
-only a man can be a defendant to a charge of rape; in law a woman cannot commit rape.
However, in DPP v K and C (1996) two teenage girls were convicted as accomplices to a rape.
The Victim
-Until 1994, rape could only be committed against a woman.
Changed by the Criminal Justice and Public Order Act 1994 so that both women and men can be victimless of rape.
Criminal Justice and Public Order Act 1994 and Sexual Offences Act 2003 and extension of rape.
CJPOA94 - amended to penile penetration of the anus.
SOA03 - further extended the offence of rape to penetration of the mouth.
-it shall not be necessary to prove the completion of inter curse by the emission of seed, intercourse shall be deemed complete upon proof of penetration only.
Sexual intercourse is a continuing act
-Kaitamaki 198
There can be liability for what might have appeared to be an omission, under the FAGAN principle.
Kaitamaki- stated by the Privy Council that if a victim consented to penetration, but after penetration they ceased to give their consent, a man would be committing the actus reus of rape if he did not withdraw.
Consent -
S74 of SOA03: ‘for the purposes of this Part, a person consents if he agrees by choice, and had the freedom and capacity to make that choice’.
- it is the absence of Consent that transforms sexual inter course into rape.
- Consent is one of the hardest things to prove at trial.
R v Olugboja 1981
A mere submission given under pressure is not consent.
-D threatened to keep a girl in his bungalow overnight.
-he made no explicit threat of violence and she did not resist sexual intercourse.
-However the court held that on the evidence she had not given proper consent just a mere submission.
(Demonstrates that the line between submission and consent is a hard one to draw).
R v Kirk 2008
Confirms that under the ‘03 Act that a mere submission is still not a consent.
- young woman had sexual intercourse with a relative that had formerly abused her in the past and had approached her when she was hungry and homeless.
- Held that he trial judges direction that she may have submitted to intercourse rather than consented was correct.
S74 definition of consent and the complainants capacity is very important.
Does not define capacity but complainants may lack capacity where they are suffering from
- a mental disorder.
- young
- intoxicated by alcohol or drugs.
R v C 2009 and lack of capacity for consent
-House of Lords stated that where, due to a physical disability, a complainant is unable to communicate a choice not to consent it would be appropriate to prosecute the offence of rape
Voluntary intoxication and capacity to consent.
R v Bree 2007
- Question of fact for the jury whether a drunk person had the capacity to give genuine consent.
- young man and a 19 yr old students had gone drinking together and returned to her flat.
- she was sick and the man helped her shower and wash her hair afterwards.
- Later they had intercourse but stopped when the man asked if she had a condom and she said no.
- In Court she said that she had not wanted intercourse but had not said no as she’s was semi conscious.
- He was initially convicted BUT APPEAL WAS SUCCESSFUL ON GROUNDS OF MISDIRECTION OF S74 AND CAPACITY.
- drunken consent could still be consent, it was a question of fact whether the particular individual had capacity to consent in circumstances.
R v O’Brien 2007
The complainant may consent to vaginal intercourse, but not consent to anal intercourse.
-if the D proceeds to penetrate her anus then this will be rape.
Sexual Offences Act 2003 & the change of the burden of proof
Due to the concerning low rates of prosecution for rape, partly due the gruelling trial experience.
SOA03- changed the burden of proof in particular circumstances.
Mens Rea for Rape
Mens rea for rape has been changed by the SOA03.
-SOA03 -requires an intentional penetration.
Under the old law SOA1956 stats that the mens rea required was that ‘at the time he knows that the person does not consent to the intercourse or is reckless as to whether the person consents to it’.
R v Heard 2007
The Court of Appeal interpreted this simply as requiring a deliberate penetration.
Mens rea requirement that the defendant did not reasonably believe the victim was consenting.
If the answer to both of these questions is yes then the D will be found not to have mens rea.
1) Did the D believe that the victim was consenting?
2) Was the belief reasonable?
S1(2) of the 2003 Act
Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps the D has taken to ascertain whether the victim consents.
- it is up to the courts to interpret what is meant by the broad reference to all circumstances.
- Temkin and Ashworth- raised the concern that an analysis of this issues could degenerate into reliance on stereotypes of male and female relationships.
