Criminal Law essay on Rape PDF

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Criminal Law (RAPE)Q. To what extent have the statutory definition of consent in section 74 of the Sexual Offences Act 2007 and the presumptions contained in sections 75 and 76 eased the burden of prosecution and the vulnerability of rape victims to intrusive court procedures?Ans. Rape is one of the...

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Criminal Law (RAPE)

Q. To what extent have the statutory definition of consent in section 74 of the Sexual Offences Act 2007 and the presumptions contained in sections 75 and 76 eased the burden of prosecution and the vulnerability of rape victims to intrusive court procedures?

Ans. Rape is one of the most serious crimes among the crimes against autonomy. The one element of extreme importance to consent against autonomy is consent. Absence of consent can therefore render one liable for criminal offences for acts like sexual intercourse, kissing, slap or even touching one. In this answer one would define consent and the nexus of consent and rape. Furthermore, one would discuss the two presumptions introduced by the SOA 2003 to ease up the burden on the courts while finding consent, contained in its s.76 and s.75, the former referred to as conclusive presumption while the latter as evidential presumptions. Lastly, one would discuss s.74, highlighting the traditional way of proving the absence of consent before concluding that these presumptions, under s.76 and s.75, have without a doubt eased the burden of prosecution.

SOA 2003 stated that one would be liable for this offence when he intentionally penetrates vagina, anus or mouth of another person with his penis, knowingly that that the other person is not consenting to it. This shows that the mere presence of consent would render the same act of penetration lawful. So in order, for one to be convicted for rape, prosecution has to prove that the victim was not consenting. This is rather easier said than done, as when normally one carries out such an act, he does in private without independent evidence. This leaves the victim in a tight spot as V could not easily prove this offence, R v Bree. In order to help out the victim and ease up the burden on prosecution, SOA 2003 introduced two presumptions, namely conclusive presumptions (s.76) which cannot be rebutted and evidential presumptions (s.75) which are rebuttable although it is very difficult to do so. Starting with s.76, the job of the prosecution is not to prove the absence of consent, rather it is to prove either of the two following circumstances stated in the presumptions beyond reasonable doubt; (i) (ii)

Deception as to nature and purpose of the act Deception as to identity

One would now discuss the first circumstance, deception as to the nature and purpose of the act, R v Williams would help understanding this better. In this case, a singing teacher told his student that if she indulged in sexual intercourse with him, her singing would improve. The student did only to know that the teacher had deceived her and that the teacher’s only goal was to have sex. This right here is deception as to the nature and purpose of the act, therefore this resulted in the consent being vitiated and the teacher was convicted of rape. In the case of Linekar, where a prostitute had a sexual intercourse with D who then refused to pay her. The Courts stated that there was no deception as to the nature of the act, because she got what she agreed to. This is a very controversial case as the outcome

may be different if it was tried before SOA 2003 and that this is clearly in conflict with the deception as to the nature and purpose of the act. Prior to SOA 2003, deception as to the identity of Victim’s spouse was only considered as an offence, however now, impersonating anyone the victim had personally known could be an offence. Therefore in R v Elbekkay, it was rape when D, twin brother of V’s boyfriend impersonated his brother and had a sexual intercourse with V. The question which may arise is that does one personally know the person they talk on social or dating apps as instagram or tinder? This is one unanswered question which might bring trouble in the future as what if someone impersonates X who V knows via tinder or any other app, would this presumption be applied there too?

Coming to s.75, the evidential presumptions, if the prosecution fulfills this presumption, the defendant would be given a chance to rebut it although the chances of being successful are very bleak. According to s.75 (2), consent of V would vitiate when; (i) (ii) (iii) (iv) (v) (vi)

The Victim was subject to immediate violence or feared that he might be before or at the time of the act, The victim feared that someone else was subject to immediate violence by D before or at the time of the act, V was while D was not unlawfully detained at the time of the relevant act, V was unconscious or sleep at the time of the act V had some type of disability while communicating that V was not consenting at the time of the act V was involuntarily intoxicated by D at the time of the act

If prosecution proves either of the abovementioned points, D would be convicted of rape, although he would have a chance to rebut this but as stated earlier, the chances of which are very bleak. However, if D is successful in doing so, prosecution would be brought back from where they started and they would have to prove the absence of consent via s.74 of SOA 2003 which is the traditional way of proving the absence of consent. According to the last point regarding the involuntary intoxication of V, it is not necessary for the victim to be rendered unconscious, all prosecution has to prove is that the said intoxication affected the clarity of mind in order for the presumption to apply.

Coming to s.74 of SOA 2003, if the prosecution was unable to establish either of the aforesaid presumptions, they still have a shot, although a long one, to convict D. This section provides the definition of consent as when the victim agrees by choice and has the freedom and capacity to make that choice. R v Olugboja explains the difficulty which is there while proving the presence of consent. R v Doyle, further puts V at a disadvantage when it upheld that consent given reluctantly is still consent. However, courts took a step in helping the victims in Kirk where the courts drew a line between consent and mere submission where the victim submitted for sexual intercourse for money which was barely sufficient for her to buy food. Moreover, determining the presence of consent is the domain of jury and it would try finding it based on the facts of the case and their common sense. In R v Bree the courts

further upheld that intoxication would only vitiate consent where the intoxication affects the person’s capacity to consent and their freedom of choice. The courts in Dougal decided that “a drunken consent is still a consent”. Victim has to therefore, explicitly tell D that he or she is not consenting to the sexual intercourse. The case of R v Kamki was in the favor of the Victim where the courts upheld that even in circumstances where the V has selfintoxicated themselves then indulged in sexual intercourse which they would not have had they been sober, there is no consent. This shows that the ambit of consent is not a fixed one and thus explains why the courts have such an issue when it comes to finding consent. Furthermore, in R v B it was held that if D did not inform V that he had any diseases like STD, and had a sexual intercourse, D would not be held liable for rape provided the victim had consented to this intercourse. D would then only be liable for GBH under s.20 of OAPA, as the nature and purpose of the act was not deceived. Moreover, if there were any conditions explicitly set out by V, and D did not follow them, D would be held guilty for rape, as was established in R v Assange and R v DPP where the victims had told D to wear a condom and not to ejaculate, D did not do so and so was convicted of rape. S.76 and s.75 have made it easier for the prosecution to prove the absence of the consent, prior to SOA 2003 it was quite a burden on the prosecution and the victim to do such. This was the main reason why the guilty often were set free and the victims were often called immoral. But now, the prosecution has to either prove the two deceptions set out in s.76 or either of the six conditions of s.75 to convict D for rape. The traditional way of proving the absence of consent does work, but it is a long shot and not a confirm one. The victim of rape might get exhausted or might not have enough resources to fight till the end, therefore s.74 is not the preferred way of prosecution when it comes to consent. However, where prosecution is unable to prove either of the presumptions, s.74 would then be the only way out for them. S.76, s.75 and s.74 show that the law tries its best to get to the guilty although that might not always be the case because of the interpretation of it by the courts. To conclude, one may feel no qualms in asserting that s.76 and s.75 have made the burden on the prosecution much lesser than it was before. The prosecution has to establish the conditions of either of the presumptions to prove the absence of the consent. If they are unable to do so this way, they always have a way out by s.74....