Sexual Offences Flashcards
How is rape defined in section 1 of the Sexual Offences Act 2003?
(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 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
What is the actus reus and mens rea of rape?
Actus reus: the defendant penetrated the vagina, anus, or mouth of the victim with his penis and the victim did not consent to the penetration
Mens rea: (1) the defendant intended to penetrate the vagina, anus, or mouth of the victim with his penis; and
(2) the defendant did not reasonably believe that the victim consented to the penetration
Who can commit rape?
Only someone with a penis can commit rape. This s because the offence requires penetration with a penis. If a woman forces a man to engage in sexual intercourse against his will this can amount to sexual assault or the offence of causing another person to perform a sexual act without consent, but will not be rape. It is possible for a woman to be an accessory to the crime of rape (i.e. to aid, abet, counsel or procure rape).
Can a husband rape a wife?
A husband can be convicted of raping his wife. This was clear only after the 1994 amendments to the Sexual Offences Act 1956, which put into statutory effect the decision of the House of Lords in R v R [1991] 4 ALL ER 481. The House of Lords rejected the outdated view that on marriage a wife gave irrevocable consent to sexual relations at any time during the marriage and therefore marital intercourse could not be unlawful.
At what age can a man commit rape?
There used to be a rule under common law that a boy under 14 was incapable of committing sexual intercourse. This was abolished for acts after 20 September 1993 by section 1 of the Sexual Offences Act 2003. Of course, to be guilty of rape a boy must be above the age of criminal responsibility (i.e. over the age of 10).
Who can be the victim of rape?
A man or woman can be the victim of rape because anal or oral rape is included within section 1. Section 79(3) of the Sexual Offences Act 2003 makes it clear that a surgically constructed vagina is included within the definition of a vagina. This means that a transgender woman who has undergone sex reassignment surgery can be vaginally raped.
What is penetration?
To amount to rape the only act that is sufficient is penetration of the anus, vagina, or mouth by the defendant’s penis. Penetration with objects or other parts of the body apart from the penis against the victim’s consent will not amount to rape, although it would amount to the offence of assault by penetration contrary to section 2 of the 2003 Act.
The definition of rape in the 2003 Act requires only penetration. This makes it clear that there can be rape even if there is no ejaculation. If the defendant tries to penetrate but fails to do so this may amount to attempted rape.
One important issue is whether the actus reus of rape is complete once penetration takes place or whether it continues as long as there is penetration. The issue is important in cases where the victim consents to the initial penetration, but then asks the man to withdraw, but he refuses (Kaitamaki [1985] AC 147). The Sexual Offences Act 2003 provides a clear answer in section 79(2): ‘Penetration is a continuing act from entry to withdrawal.’ This means that if the victim withdraws his or her consent after the initial penetration, but the defendant does not withdraw within a reasonable length of time, this can be rape. What exactly is a reasonable time may cause difficulties in some cases and will be left to the ‘common sense’ of the jury.
What is consent?
It is important to appreciate that questions over the victim’s consent arise in two contexts in relation to rape. First, as a matter of the actus reus it must be shown that the victim did not consent to the penetration. Second, as a matter of the mens rea it must be shown that the defendant did not reasonably believe that the victim consented. These two questions must be dealt with separately. First, we will be looking at the actus reus issues: did the victim consent?
EXAMINATION TIP: when answering problem questions in relation to rape it is very easy to merge together the questions: (a) did the victim consent? and (b) did the defendant think the victim was consenting? These must be treated as two separate questions: the first is a matter of the actus reus and the second is to do with the mens rea of rape.
The 2003 Act defines consent in the following way in section 74: ‘a person consents if he agrees by choice, and has the freedom and capacity to make that choice.’
This leaves unanswered a lot of questions about the meaning of consent and we will now address these. After the 2003 Act the law is a little complicated because there are circumstances under which consent is presumed to be lacking. Where the presumption does not apply or when deciding whether the presumption has been rebutted the courts will turn back to the basic meaning of consent. So in deciding whether or not the victim has consented the following approach is recommended:
EXAMINATION TIP - to decide whether the victim consented ask:
(1) is this a case in which the victim is conclusively presumed to have not consent?
If YES: the victim did not consent
if NO: consider question 2
(2) Is this a case in which there is an evidential presumption that the victim did not consent?
If YES: then you must consider whether or not the presumption is rebutted. If it is: consider question 3; If it is not: the victim did not consent.
If NO consider question 3.
(3) Did the victim consent under the basic meaning of consent in section 74?
If YES: the victim did consent
If NO: the victim did not consent
What are the conclusive presumptions about consent?
These are found in s76: conclusive presumptions about consent
(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 the defendant did not believe that the complainant consented to the relevant act
(2) the circumstances are that-
(a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
(b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person know personally to the complainant
It should be noted that these are conclusive presumptions. So, for example, once it is shown that the defendant intentionally deceived the complainant as to the nature of the act he will be guilty of rape. There is no way that he can rebut the presumption. Note also that when the presumption applies both the mens rea and actus reus of rape are proved.
We will first consider further circumstances in which it will be presumed that a victim who is mistaken as to the nature of the act does not consent under section 76(2)(a). The following need to be shown:
(1) there must be a deception.
(2) the deception must be intentional
(3) there must be a deception as to the nature or purpose of the act. If the victim is mistaken as to the nature of the act there is no true consent, e.g. Williams [1923] 1 KB 340 (where a singing teacher persuaded his pupil, aged 16, to agree to let him do something that would improve her breathing. She was unaware that in fact he was engaging in sexual intercourse with her. He was convicted of rape. The act she consented to (the assistance in breathing technique) was different in nature from the act the defendant did. The case would have been less straightforward is the victim had understood that they were to have sexual intercourse, but the defendant had persuaded the victim that having sexual intercourse would make her sing better. Although she would then not have been mistaken as to the nature of the act she may have been deceived as to the purpose of the act.
The interpretation of the phrase ‘nature and purpose’ in the presumption has proved problematic. A leading case on deception and consent in the Sexual Offences Act 2003 is R v Jheeta [2007] EWCA Crim 1699. Please explain this case.
R v Jheeta [2007]
Harvinda Jheeta and the complainant had been going out together and having sexual relations. When the relationship cooled the defendant anonymously sent various threatening text messages to the complainant. She consulted the defendant and he suggested he contacted the police. He then, over several years, sent her text messages purporting to be from the police, she was told she should keep having sexual relations with the defendant otherwise she may have to pay a fine for causing him distress. She said she had sex with the defendant on about 50 occasions, only because of the ‘police advise.’ When interviewed the defendant said he realised that the victim had not been consenting to sexual intercourse with him and had sex because of his deceptions.
Please explain the case of R v Devonald [2008]. What did LJ Leveson conclude of this case?
Stephen Devonald posed on the internet as a 20-year-old woman named ‘Cassey.’ He deliberately set out to meet the victim, a 16-year-old boy who was his daughter’s ex-boyfriend. Pretending to be Cassey he persuaded the victim to masturbate on the webcam. Devonald’s plan, it appears, was to put film of this on the internet, causing the victim embarrassment and thereby exact revenge for what he regarded as the bad way he had treated his daughter. Devonald was charged with causing a sexual activity (the masturbation) without consent, contrary to section 4 of the Sexual Offences Act. A key issue was whether the victim consented. The prosecution argued that under section 76(2)(a), because the victim had been deceived as to the nature or purpose of the act, there was no consent.
Lord Justice Leveson: the learned judge ruled that it was open to the jury to conclude that the complainant was deceived as to the purpose of the act of masturbation. We agree. On the facts, as we have described them, it is difficult to see how the jury could have concluded otherwise that the complainant was deceived into believing that he was indulging
We are a long way from being able to offer a definitive analysis of what constitutes a deception as to the nature or purpose of the act under section 76, it seems some points that define deception have been established. What are these four points?
1) A deception might be relevant to consent in two ways/ If the deception is as to ‘nature or purpose’ it can fall under the conclusive presumption and negate consent. If the deception is not as to ‘nature or purpose’ it might still mean that the victim did not consent, considering the general meaning of consent under section 74. Notable in both Jheeta and B the deception was held not to negate consent under the conclusive presumption but to potentially mean there was no consent under the general meaning.
2) A deception as to a ‘peripheral matter’ will not amount to a deception as to ‘nature or purpose.’ So a defendant who tells a woman he meets at a party that he is a lawyer and as a result she agrees to sleep with him, will not have been deceived in a matter which affects the nature or purpose of the act. Indeed, only in rare cases will a case involve a deception which falls within the conclusive presumption.
3) It seems from B that if the victim is aware of some of the defendant’s purposes she will not be deceived as to the purposes of the act even though she is not aware of all the defendant’s purposes. In that case she knew the act was for sexual gratification, even if his motivations seem a little more complex than that. By contrast in Devonald where the victim was completely unaware of the motivations of the defendant there may be a deception as to purpose. That would suggest the courts would follow the pre-2003 Act case of Tabassum. There, it was found that women who agreed to examination of their breasts after the defendant had untruthfully said he was medically qualified and wished to examine them as part of a research project, were found not to have consented. They were completely deceived as to the nature of the acts.
4) Cases of deception as to nature of the act involving sexual intercourse will be limited, it seems, to cases where the victim is unaware the act is sexual intercourse. In Assange v Swedish Prosecution Authority it was held that if the woman had agreed to have sex if the man wore a condom, but he penetrated her without one, that would not fall within section 76. It would not affect the nature of the act. However, it could still be rape because the woman would not have consented to the act in the general meaning of consent in section 74. In R v EB a defendant who did not disclose he was HIV positive was held not to have deceived as to the nature or purpose of the act.
Section 76(2) creates a conclusive presumption in cases of impersonation. What three points can be made about this subsection?
1) there must be an impersonation. In Elbekkay [1995] crim LR 163 (CA), at night time, the D entered the V’s bedroom. She assumed that he was her boyfriend and so consented to sexual intercourse. The D realised his mistake, but had sexual intercourse with her. The presumption does not apply in such a case because the D had not impersonated the boyfriend (he had said nothing to suggest he was the boyfriend). However, he will still be guilty of rape because under the general meaning of consent the victim did not consent.
2) the impersonation must be of a person known personally to the complainant. Clearly the presumption would apply where the D impersonated the victim’s husband, partner, or even friend. But, it seems, the presumption would not apply where the D impersonated the victim’s favourite film star. Similarly, if the D simply claimed an attribute which he did not have (e.g. that he was rich or was a qualified lawyer) this would not negate consent.
3) rather oddly, the subsection seems to apply even if the victim is not taken in by the impersonation. Consider this: Dave fancies his best friend Mick, but Mick is not interested. Pete (whom Dace does not know) fancies Dave and, learning of Dave’s liking of Mick, decides to try to impersonate Mick. When Dave sees Pete he realises that Pete is not Mick, but agrees to sexual intercourse with him because Pete looks so much like Mick he can live out a fantasy. It seems that if s76 were interpreted literally this would be rape. But this is absurd; the subsection (although it does not say so) is surely meant to apply only when the victim is taken in by the impersonation.
There are two kinds of cases where the statutory presumption of non-consent does not apply, but the jury may still decide that the victim does not consent under the general meaning of consent. What are these two kind of cases?
1) where there is no deception. In Elbekkay the Court of Appeal found that the victim had not consented to sexual intercourse with the D, even though the D had not in fact impersonated the boyfriend. The V had consented to sexual relations with her partner, not the D. There was therefore no consent.
2) where the mistake is as to the identity of a person not known to the victim. The statutory presumption applies only where the D impersonates someone the victim knew personally. For a long time the common law view was that impersonation only of a spouse could negate consent. However, this was extended to unmarried partners in Elbekkay [1995] Crim LR 163. Obiter, McCowan LJ, giving the judgement of the court, explained that ‘The vital point about rape is that it involves the absence of consent. That absence is equally crucial whether the woman believes that the man she is having sexual intercourse with is her husband or another.’ The phrase ‘or another’ may suggest the common law is even wider than the statutory presumption and includes cases of impersonation of anyone.
What are the evidential presumptions about consent as set out in section 75? (ITS LONG)
1) if in proceedings for an offence to which this section applies it is proved-
a. that the D did the relevant act,
b. that any of the circumstances specified in subsection (2) existed, and
c. that the 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
2) the circumstances 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;
b. any person was, at the time or 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 the defendant 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. use of the complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented;
f. person had administered or to be 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.
3) In subsection (2)(a) and (b), the reference to the time immediately before the relevant act began is, in the case of an act which is one of a continuous series of sexual activities, a reference to the time immediately before the first sexual activity began.
