Criminal Law; Rape Notes

Página 1

Sexual Offences (Notes from Criminal Law textbook)

The law on sexual offences (Sexual Offences Act 1956) has been transformed by the Sexual Offences Act 2003.

1 Rape

Rape is defined in section 1 of the Sexual Offences Act 2003 as:

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, and

c) A does not reasonable believe that B consents.

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.

Definition:

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:

the defendant intended to penetrate the vagina, anus, or mouth of the victim with his penis; and

the defendant did not reasonably believe that the victim consented to the penetration.

Who can commit rape?

Only a man can commit rape as it requires penetration with a penis.

A woman who forces a man to engage in sexual intercourse against his will may amount to a sexual assault or the offence of causing another person to perform a sexual act without consent. A woman can be an accessory to the crime of rape i.e. to abid, abet, counsel, or procure rape.

Can a husband rape his wife?

A husband can be convicted of raping his wife after the 1994 amendments to the Sexual Offences Act 1956. This put into statutory effect the decision of the House of Lords in R v R.

(The HoL rejected the view that in a marriage a wife gave irrevocable consent to sexual relations at any time and thus marital intercourse could not be unlawful).

At what age can a man commit rape?

Under common law a bot who was under the age of 14 would not be capable of committing sexual intercourse. This was abolished for acts after 20th September 1993 by the Sexual Offences Act 2003, section 1. A boy can be guilty of rape when he's above the age of criminal responsibility.

Who can be the victim of rape?

In section 1. Section 79(3) of the Sexual Offences Act 2003 it is said that a man and a woman can be the victim of rape because surgically constructed vagina is also included with the definition of a vagina so a 'male to female' transexual who has undergone 'gender 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 other than parts of the body 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. In cases where the defendant tries to penetrate but fails, his actions amount to attempted rape.

The actus reus of rape is continuous (continues as long as there is penetration). The Sexual Offences Act 2003 section 79 (2): 'Penetration is a continuing act from entry to withdrawal'.

Can be considered rape if victim consents to initial entry/penetration but asks defendant to stop, and he does not stop/withdraw within a reasonable length of time.

What is consent?

Consent must be considered through the context of the actus reus where it must be shown that the victim did not consent to the penetration, and the mens rea where it must be shown that the victim did not reasonably believe that the victim consented.

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."

In deciding whether or not the victim has consented ask:

Is this a case in which the victim is conclusively presumed to have not consented?

If YES: The victim did not consent.

If NO: Consider question 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 (claim or prove that is false). If it is: consider question 3; if it is not: The victim did not consent.

If NO: Consider question 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.

Conclusive presumptions about consent (section 76)

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.

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 known personally to the complainant.

When presumptions apply both the mens rea and the actus reus of rape are proved.

(1) There must be a deception

If the mistaken nature or purpose of the act is not due to a fault of the defendant then the statutory presumption does not apply. However, the jury would find that there is no consent in its general meaning. It is not required for the deception to have caused the consent. i.e. You must have sex with me if you want to be cured also falls under this section. However, it must be shown that the victim was deceived.

(2) The deception must be intentional

The statutory presumption of no consent applies only if the defendant's deception was 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 A singing teacher persuaded his student to have sexual intercourse with her in order to improve her breathing. She was unaware that it was sexual intercourse. He was convicted of rape.

Three leading cases on deception and consent in the Sexual Offences Act 2003:

R v Jheeta (2007) EWCA Crim 1699

Harvinda Jheeta and the complainant had been going out and having sexual relations . When their relationship was cooling off the defendant began sending anonymous text messages threatening the complainant and when she consulted the defendant he told her he should tell the police. He then sent her text messages on behalf of the police saying she should continue having sex with the defendant otherwise she may have to pay a fine for causing him distress. She said she had sex with the defendant on 50 different occasions only because of the 'police advice'. When interviewed the defendant admitted to realizing the victim had not been consenting to sexual intercourse and had sex because of his deceptions.

Lord Justice Judge talked about how this case was problematic since the complainant was not deceived as to the nature or purpose of intercourse, "but deceived as to the situation in which she found herself". This was not a free choice, or consent for the purpose of the Act.

(example of deception as to purpose: R v Tabassum (2000) )

R v Devonald (2008) EWCA Crim 527

Stephen Devonald posed on the internet as a 20 year old woman with the name 'Cassey'. He set out to befriend a 16 year old boy who was his daughter's ex-boyfriend. He persuaded the victim to masturbate on webcam by posing as Cassey. His plan was to record the video and spread it online to cause the victim humiliation as a form of revenge for the way the victim had treated his daughter. Devonald was charged with causing a sexual activity (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.

R v B (2013) EWCA Crim 823

The defendant contacted his girlfriend (X) on a social networking website pretending to be someone called Grant. She sent him naked photos of herself. He threatened her with them and said if she doesn't perform sexual acts in front of the webcam he will leak her photos. She did. She told her boyfriend (the defendant) who then later told her he had found Grant and had killed him. He then pretended to be someone else online with the name of Chad and claimed that he had her topless photos from Grant and if she wouldn't perform sexual acts in front of the webcam he would leak the photos. She did. The judge relied on Devonald and directed the jury that if they were persuaded that there was a deception as to the defendant's purpose they could presume a lack of consent. He appealed against the conviction on the basis that the direction was wrong. Held that it was wrong to approach it under section 76. If the complainant only complied because she was being blackmailed, the prosecution might argue forcefully she did not agree by choice.

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 to the nature or purpose it might still mean that the victim did not consent, considering the general meaning of consent under section 74. eg 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.

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 he's a lawyer and she sleeps with him because of that will not have been deceived in a matter which affects the nature or purpose of the act. Only in rare cases will a case involve a deception which falls within the conclusive presumption. B shows us that if the victim is aware of some of the defendant's purposes she will not be deceived as to the purpose of the act even though she is not aware of all the defendant's purposes.

pre-2003 Act case of Tabassum . Found that a woman 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 have consented. They were completely deceived as to the nature of the acts.

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.

Conclusive presumption: case of impersonation (Section 76 (2))

(1) There must be an impersonation

In the case of Elbekkay (1995)

(2) The impersonation must be of a person known personally to the complainant

(3) The subsection applies even if the victim is not taken in by the impersonation

This would be the literal interpretation but that's absurd so it only applies where the victim is taken in by the impersonation.

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:

Where there is no deception

In Elbekkay the Court of Appeal found that the victim had not consented to sexual intercourse with the defendant, even though the defendant had not in fact impersonated the boyfriend. The victim had consented to sexual relations with her partner, not the defendant. There was therefore no consent.

Where the mistake is as to the identity of a person not know to the victim.

Statutory presumption applies only where the defendant impersonates someone the victim knew personally. Previously under common law it was said that impersonation only of a spouse could negate consent but now after Elbekkay this was extended to unmarried partners.

If the victim is mistaken as to an attribute of the defendant, rather than the identity of the person, then that will not create a conclusive presumption of no consent.

Evidential presumptions

Section 75:

Evidential presumption about consent

(1) If in proceedings for an offence to which this section applies it is proved-

(a) that the defendant did the relevant act,

(b) that any of the circumstances specified in subsection (2) existed, and

(c) that the defendant 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 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;

(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 to or 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 over-powered 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 .

Where it is proved by the prosecution that one of the sets of facts listed in section 75 (2) existed and the defendant was aware they existed, then there is a presumption that the actus reus and mens rea of rape are established. But this is only an evidential presumption and it is up to the defendant to provide evidence to show that the actus reus and mens rea of rape did not exist.

If the defendant produces sufficient evidence to raise an issue as to whether the actus reus or mens rea of rape existed then the presumption is rebutted. The prosecution must then prove beyond reasonable doubt that the actus reus and mens rea of rape existed.

In Ciccarelli it was emphasised that the defendant, to rebut the presumption of mens rea had to introduce evidence that he reasonably believed that the victim consented. It was not enough to just say he believed it.

defendant causes imminent unlawful force to the

Case of Ireland - if they have a fear of violence

Battery: application of force or touching

It was also taken into consideration that it was not in the public interest.

Mens rea: