DISCLAIMER: all information in these module reviews is taken from our own notes and research so please do not cite this in your work. This Module Review also deals with the topic of rape – if you feel affected by this topic, you can get in touch with SupportLine here or call the Samaritans on 116 123.
Welcome to the fifth instalment of our Module Reviews!
Our current focus now turns to Criminal law, with this Review covering the sexual offence of rape. This is a brief summary intended to give a basic overview of the topic for those beginning their journey into Criminal law. Throughout this Review, I have cited criminal cases as authority for much of the information given, which you can find italicised throughout.
Introduction
Whilst ‘sexual offences’ is an umbrella term covering a range of offences, rape is perhaps the offence that springs to mind when dealing with this term. The key piece of legislation relating to rape is the Sexual Offences Act 2003, which lays out the actus reus and mens rea of the offence:
Sexual Offences Act 2003, section 1:
(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 the penetration.
(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.
Actus Reus
As we can see from ss.1(1)(a) and 1(1)(b) is that the actus reus of rape consists of A penetrating the vagina, anus or mouth of B with his penis and B not consenting to the penetration.
It is clear from this definition that A must have a penis – under s.79(3) this includes surgically constructed genitalia, and the victim can be male or female. Furthermore, the case of Hughes illustrates that even the slightest degree of penetration will suffice.
Under s.79(2), we are told that penetration is a continuing act from entry to withdrawal, meaning that a person may change their mind about consent, leading to rape. This is just one illustration as to how the law surrounding rape can often turn on the issue of consent; the Act addresses further issues relating to consent in subsequent sections.
Section 76: Conclusive Presumptions of Lack of Consent – under s.76(1) if it is proven that the defendant (B) did the relevant act and that any of the circumstances in subsection 2 existed, it will be presumed that A did not consent to the relevant act and that B did not believe that A consented; the circumstances in subsection two are:
The defendant intentionally deceived the complainant as to the nature or purpose of the relevant act
The defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.
Although impersonation is a relatively straightforward concept, there is substantial case law relating to the ‘nature or purpose’ element of this offence – for example, in Flattery, the defendant pretended to be carrying out a surgical operation when he was really having intercourse with the victim, and in Williams the defendant claimed he was performing a procedure to help the victim breathe better whilst raping her.
Section 75: Evidential Presumptions – this section lays out a number of circumstances in which it is presumed that B did not consent and A had no reasonable belief in consent, unless evidence can show otherwise. You can find these within the Act, but these include:
(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 of 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.
Mens Rea
The mens rea of rape follows the statutory provision – A must have intended to penetrate the vagina, anus or mouth with his penis and A did not reasonably believe that B consented to the penetration.
Under the previous law in DPP v Morgan, an honest belief in consent was a defence, even if the belief was viewed as unreasonable. Following s.1(2) of the Sexual Offences Act 2003, whether a belief is reasonable is now to be determined having regard to all the circumstances, including any steps the defendant has taken to ascertain consent – this is clearly a shift towards a more objective assessment that prevents the low conviction rates and arguable allowance of risk that came under the old law.
Key debate: do we need reform surrounding the law on consent here?
Consent
Under s.74 of the Act, a person consents if s/he agrees by choice and has the freedom and capacity to make that choice. We will look at each of these elements in turn.
Agrees by choice – this ultimately rests on the notion of free agreement and indicates that the absence of complainant’s protests, resistance or injury does not always signify consent (Malone).
In Olugboja, two men met the two victims at a disco and offered to take them home, but instead took them to one of their houses. One of the victims was raped and the other was subsequently asked to remove her trousers, which she did – it was held that this removal of the trousers was not consent but submission; whilst every consent involves some submission, not every submission involves consent. The victim had clearly submitted out of fear and did not consent.
Capacity to consent – this not only refers to mental capacity (see R v C), but also where a person is intoxicated and cannot recall whether they consented. Although in Kamki it was found that a person can still have the capacity to consent even when they have had a lot to drink, in Bree the court held a state of incapacity can be reached before a person loses consciousness.
Deception – there is significant case law regarding situations where a person has consented to sex but has done so by false pretences or representations. In Dica for example, it was held that failing to reveal HIV status to a partner could not constitute rape, whilst in Assange penetration without a condom where consent was conditional on the use of one did amount to rape.
Key debate: which types of circumstances should and should not vitiate consent to rape?
Thank you for reading this weeks’ Module Review! In our final part, we will look at the law on theft.
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