Rape

Rape

1. Actus Reus S.1

   • D commits an offence if he intentionally penetrates the vagina, anus or mouth of another with his penis, V doesn't consent & D doesn't believe V consents
   • *Penile Penetration
   • *Penetration to the Vagina, Anus or Mouth
     • References to part of body include surgically constructed parts
     • R v Ismail = No need to distinguish which parts penetrated, all serious
     • R v Leaver = Confirmed Kaitamaki good point on law that penetration being a continual act from withdrawal
   • *Without V's consent

2. Definition of consent spread across 3 sections: S.76 = 'Conclusive Presumptions' about non consent, S.75 = 'Evidential Presumptions' require D to provide counter evidence, S.74 = General definition of consent

3. S.76 'Conclusive Presumptions'

   • A) D intentionally deceived V as to nature & purpose of act = Misled by physical mechanics of act, deceived as to 'purpose' of act
     • R v B = Deception must be intentional
     • R v Jheeta = Common lies vesicates consent under s.74. S.76 narrow & only to be used in extreme cases
   • B) D intentionally induced V to consent by impersonating a person known personally to V

4. S.75 'Evidential Presumptions'

   • If case comes within rebuttable presumptions, jury will find lack of consent, unless D has evidence to rebut presumption
   • 1) Violence: D imposes violence at time of act or immediately before
     • R v Ireland & Burstow = Immediate meaning minutes, hours or days
     • Some people like having violence to them in sex, so evidential not conclusive presumption (R v Brown)
   • 2) Fear of Violence
     • 3) Unlawful Detention
       • 4) Unconsciousness
         • 5) Disability Preventing Communication
           • 6) Involuntary Substance: D causes V to consume unwanted substance
             • R v Malone = D must know substance is capable of over powering V

5. S.74 'General Definition'

   • A person consents if they agree by choice & has the freedom & capacity to make that choice
     • R v Bree = Drunken consent is still consent
   • Capacity: V must be able to understand choice, must have mental capacity
     • Freedom: V must have freedom from threats & deception + freedom from circumstances not caused by D
       • Kirk = V agreed to have sex with D in exchange for £3.25
     • Kamki = Jury have to determine evidence of V in determining state of consciousness & effect on their capacity
   • Assange = Sex with a condom same as sex without a condom, falls under general definition of consent
   • R v Jheeta = Where there is active deception of common lies vesciates consent under s.74
   • R v McNally = General deception vesciates consent under s.74

6. Mens Rea S.1

   • D must have mens rea not to consent
   • D intentionally penetrated V and either intended that V did not consent or did not reasonably believe that V consented.
   • whether a belief was reasonable, this is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether V consents.
     • The test for reasonable belief is: what is D’s subjective belief about V’s consent, measured then against the objective/standard of reasonableness. This is a hybrid test.