Sexual Offences - Rape

Question 1

What are the points to prove for Rape?

Answer 1

• intentionally penetrates the vagina, anus or mouth of another person with his penis
• the person does not consent to the penetration
• there is no reasonable belief that the person consents

Question 2

What is the criminal conduct for Rape?

Answer 2

• the defendant intentionally penetrated the vagina, mouth or anus of the victim

Question 3

Does a person have to ejaculate for rape?

Answer 3

No - however, the presence of semen may be important in proving the element of the sexual offence

Question 4

Does the legislation for Rape protect trans persons?

Answer 4

Yes - surgically constructed penises and vaginas through gender reassignment are included - therefore, a person with a surgically constructed vagina can be raped and a person with a surgically constructed penis can be a rapist

Question 5

Explain consent

Answer 5

S.74 Sexual Offences Act 2003 - a person consents if they agree by choice and have the freedom and capacity to make that choice

Question 6

What is true consent?

Answer 6

consent that is not induced by fear or fraud - for example, if someone is told to have sex otherwise their family will die, the person’s ‘consent’ to do this would not be ‘true’ as their choice to participate would not be a genuine exercise of free will.

Question 7

Can consent be withdrawn at anytime?

Answer 7

Yes - once the party withdraws consent any continued sexual activity can amount to a sexual offence

Question 8

Explain consent for someone that has a sexual transmitted disease and does not tell the other party of this

Answer 8

• if the accused makes no mention of his condition, this will not be rape. However, if may constitute an offence under the Offences Against the Person Act (s.20/ s/18 assault)
• if the accused positively assures the complainant that he does not have a sexually transmitted disease and does, this could constitute rape

Question 9

Examples of circumstances that will be presumed that the victim did not consent if the defendant knew they existed

Answer 9

• at the time or the act or immediately before using violence against the victim/ making them fear that violence would be used against the victim
• at the time of the act or immediately before, causing the victim to fear that violence was or would be immediately used against another person
• the victim was and the defendant was not unlawfully detained at the time
• the victim was asleep or otherwise unconscious
• the victim is physically disabled and unable to communicate their consent to the defendant
• substances administered to the complainant, without their consent, causing them to be stupefied/ overpowered at the time of the act

Question 10

S.76 Sexual Offences Act (Conclusive Presumptions)

Answer 10

If the defendant:

• deceives the victim regarding the nature and purpose of the act
• induces the victim to consent to the act by impersonating a person known personally to them

Then the complainant has not consented to the act

Question 11

S.75 Sexual Offences Act (Evidential Presumptions)

Answer 11

Consent will be presumed not to have been given where:

• violence or threat of violence at the time of or immediately before the act / first sexual activity - can be towards them or a third person
• complainant asleep/ unconscious

(Burden of proof is on the defendant to challenge)

• if issues surrounding consent were not known by the defendant (e.g. if defendant did not know the victim had their drink spiked) - then cannot prove no consent

PRESUMPTION = REBUTTABLE - means that sufficient evidence can be adduced to question consent

Question 12

Can a person be deceived by gender? (Consent)

Answer 12

• R v McNally - if a person deceives someone into believing that they are a different gender this removes the other person’s ability to consent to the sexual activity

Question 13

Can a rape occur if someone states they will wear a condom and then do not?

Answer 13

Yes - the sexual intercourse is consented on the condition of wearing a condom - if he does not do so, there is no consent

Question 14

Can rape occur if someone says they won’t ejaculate inside the vagina and then deliberately do?

Answer 14

Yes - the sexual intercourse is consented to on the condition that the party will not ejaculate into the vagina - if he deliberately goes against this then consent has been negated

Question 15

If a person promises to marry someone if they have sex with them, can a conclusive presumption be made that they did not consent to the sexual intercourse if this is not true?

Answer 15

No because they did not deceive them as to the nature and purpose of the sexual intercourse