Criminal Law - Rape Summary PDF

Preview

Summary

Rape Reform background:  Old law mostly governed by the Sexual Offences Act 1956  Criticised as “archaic, incoherent and discriminatory” - Lord Falconer, introducing the Sexual Offences Bill in the House of Lords.  Further criticised as old fashioned, “cumbersome and inadequate” – J Temkin ‘Getti...

Description

Rape Reform background:  Old law mostly governed by the Sexual Offences Act 1956  Criticised as “archaic, incoherent and discriminatory” - Lord Falconer, introducing the Sexual Offences Bill in the House of Lords.  Further criticised as old fashioned, “cumbersome and inadequate” – J Temkin ‘Getting it right: Sexual offences law reform (200) 150 New Law Journal 1169  The Sexual Offences Act 2003 now governs most of the main sexual offences which occur in England and Wales. It represents a critical and radical overhaul of sexual offences.  An act ‘to modernise Victorina laws on sex offences and to provide a clear, coherent and effective set of laws, that increase protection, enable the appropriate punishment of abusers and ensure that the law is fair and non-discriminatory.’  The Act came in force on 1st May 2004.  Rape – s.1 Rape is an offence contained in s.1 SOA 2003: S1(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, and (c) A does not reasonably believe that B consents s.1(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.  Rape is a conduct crime: D’s conduct (penile penetration of V’s vagina, anus or mouth) must take place in particular circumstances (i.e., where V does not consent). There is not ‘result’ element. As such, causation is not an issue under the actus reus of rape. Actus reus:  D penetrated V’s vagina, anus or mouth with his penis at the time V did not consent to penetration Perpetrators: who can commit rape?  Penetration must be penile (i.e., only male perpetrators but female or male victims)  Female perpetrators? Cannot commit rape against male or females. Alternative offences? Potentially s.2 SOA 2003 (assault by penetration) where a female penetrates a male or female with an object.  Cases where a woman forces a man to penetrate her with his penis this obvious offence would be s.4 SOA 2003 (causing a person to engage in sexual activity without consent).  A husband can rape his wife – R v R (1991)  S.79(2) SOA 2003: penetration is a continuing act from entry to withdrawal  S.79(3) SOA 2003: references to a part of the body include reference to a part surgically constructed (in particular, through gender reassignment surgery).  S.79(9) SOA 2003: “Vagina” includes the vulva:  R v F (2002) – vagina is not to be interpreted in a strict autonomically sense  R v Kaitamaki (1985) – if V revokes consent and D does not withdraw, D will be liable for rape  R v Leaver (2006) – D’s state of mind will also be considered.  R v Ismail (2005) – the body part does not change the seriousness of sentencing Three possible routes to determining V’s non-consent: 1. Conclusive presumptions about non-consent (s.76 SOA 2003)

(1) 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 to (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: s.76(2)(a); D intentionally deceived V as to the nature or purpose of the relevant act OR s.76(2)(b); D intentionally induced V to consent to the relevant act by impersonating a person known personally to V.  if it is proved that D did the relevant act and any one of the circumstances in s.76 existed, then the conclusive presumption is that V did not consent. If this is found, it will also be conclusively presumed that D did not believe that V consented. So, barring any defences, the offence will be complete.  This only relates to where D intentionally deceived V. Where V unilaterally forms a false understanding as to nature, purpose or identity D has not intentionally deceived V as to this, s.76 cannot apply. Instead see s.74 SOA 2003. Intentional deceptions as to the ‘nature’ of the act: R v Flattery (1877) – V did not understand the nature of the act from D’s deception. The doctor said the medical examination would fix her fits but he actually had sexual intercourse with her. R v Williams (1923) – The teacher told one of his students thst he was performing an act to open her air passages to improve her singing, in fact he was having sexual intercourse with her. Assange v Swedish Prosecution Authority (2011) – D removed the condom during sex even though V only consented to sex with a condom on. R v DPP (2013) – V only consented if D did not ejaculate in her vagina as she did not want children. D ejaculated into her after declaring that he would. Intentional deceptions as to the ‘purpose’ of the act: R v Lineker (1995) – the man did not intend to pay the prostitute for sex. Under the new law this would-be deception as V only had sex for money. R v Bingham (2013) – there will only be intentional deception where V is not aware of any purpose. Deceptions as to identity? R v Elbekkay (1995) – where you impersonate a long-term heterosexual partner.  The phrasing of ‘intentional’ deception suggests that the deception must have been ‘active’ in some way (i.e., done by words or actions) and not passive (i.e., by nondisclosure).  The definition is of “known” person is not defined. What about people you meet on social media? Are they “known” people? 2. Evidential/rebuttable presumptions about non-consent (s.75 SOA 2003)  S.75 SOA 2003: evidential/rebuttable presumption against consent where any of the circumstances listed below exists, D knows it/they exist(s) and D is unable to raise sufficient evidence to rebut the presumption.

The evidential/rebuttable presumption is that V did not consent. If this is found, D may raise evidence that either V did consent or that D reasonably believed that V consented. If D cannot raise this evidence, it is presumed that V did not consent, and that D did not reasonably believe in consent. s.75(2) the circumstances are there that – (a) any person was, at the time of the relevant act or immediately before it began using violence against V or causing V to fear that immediate violence would be used against him.  The threat need not emanate from D.  At the time of the act or immediately before it? – R v Dangall (2003)  Threat of immediacy? How immediate? R v Constanza (1997) – wide view of immediate. It didn’t have to be straight away but at some point in the future. R v Ireland & Burstow (1998) – immediate meant ‘imminent’ R v Taran (2006) – V was raped at gun point Why does a threat of violence give rise to only an evidential/rebuttable presumption and not a conclusive presumption?  R v Brown (1994) – consented to sexual acts.  Violence only to V. V’s property? V’s family/friends and other third parties covered by s.75(2)(b).  Threats short of violence? Threats skin to blackmail? (b) any person was at the time of the relevant act or immediately before it began causing V to fear that violence was being used, or that immediate violence would be used, against another person.  The threat need not to emanate from D. fear of violence towards third parties, V’s family/friends etc. (c) – V was, and D was not unlawfully detained at the time of the relevant act e.g kidnap – R v David T (2005). (d) – V was asleep or otherwise unconscious at the time of the relevant act:  D must know that V is unconscious  Stevenson et al, Blackstone’s guide to the SOA 2003  R v Larter (1995)  Unconsciousness need have no specific cause. (e) Because of V’s physical disability, V would not have been able at the time of the relevant act to communicate to D whether they consented. (f) Any person had administered to or caused to be taken by V, without V’s consent a substance which having regard to when it was administered or taken, was capable of causing or enabling V to be stupefied or overpowered at the time of the relevant act.  Aims to tackle drug assisted rape. Use of drugs: Rohypnol, GHB, alcohol.  V being stupefied (falls under s.75(2)(f) as contrasted to V’s merely lower inhibitions (fall under s.74 – see below).  R v Malone (1998) – she was too drunk to put up any physical resistance  R v Minas (2003)  Do not get confused here with SOA 2003, s.61 (preparatory offence of administering a substance with intent).  D forces V to consume the substance – R v Bree (2007)  D deceives V into self-administration – R v Abbess (2004) 



Baroness Scotland: Home affairs committee 5th report 2002-3: “In order for these presumptions not to apply, the defendant will need to satisfy the judge from the evidence that there is a real issue about consent that is worth putting to the jury. The evidence relied on may be, for example, evidence that the defendant himself gives in the witness box, or evidence given on his behalf by a defence, witness, or evidence given by the complainant during cross examination. If the judge is satisfied that there is sufficient evidence to justify putting the issue of consent to the jury, then the issue will have to be proved by the prosecution in the normal way.”

(g) A general definition of consent (s.74 SOA 2003)  S/74: V consents if he/she agrees by choice and has the freedom and capacity to make that choice. Freedom to choose. Physical coercion (i.e., violence) is dealt with under s.75(2)(a) SOA 2003. But what about non-physical coercion like threats; improper offers; financial threats?  R v Wellard (1978) – V did not consent, and D had “submitted” to sex.  R v Kirk (2008) – agreed to have sex for £3.35 to have food as she was homeless. There was no consent the circumstances led to submission.  R v Bree – D remained some capacity to choose even though she was so drunk there was consent. More difficult cases and non-physical coercion?  R v Day (1841)  R v Olugboja (1981) – consent was a common word covering a large state of mind. Desire (consent) When does reluctance acquiescence (consent) turn into submission (nonconsent)? Must look at V’s state of mind before the sexual intercourse began.  R v Watson (2015) – Consensual relationship between the daughter and biological father which was revealed by explicit text messages. It is possible for a person to submit to a demand which he or she is unable to resist. What about deception?  Assange v Swedish Prosecution Authority – removed the condom during sex and V had only consented to have sex if it was with a condom  R (on the application of F) v DPP – ejaculated inside V after V decided she did not want children  R (on the application of Monica) v DPP (2018) – only deceptions closely connected with the nature and purpose of the act will count.  R v Lawrance (2020)  Active (i.e., intentional) deceptions vs non-disclosure (i.e., ‘passive deception)?  R v Lawrance (2020) – D met V on a dating website. D told V that he was infertile, so they had sex twice with protection. He lied and V fell pregnant. A lie about fertility was not connected to the nature and purpose of the act. V was not deprived from the freedom from decide whether or not she agreed to sexual intercourse.  R v B (2007) – D failed to tell V that he had HIV before sex. It was not intentional, so it was not deception.  R v Jheeta (2008) – D sent anonymous text messages over several years, purporting to be from the police, telling her to continue having a sexual relationship with him in order to avoid fines for causing distress. D was charged with rape.  Mental capacity? V’s Voluntary intoxication?

 



R v Bree (2007) – D remained some capacity to choose even though she was drunk so there was consent. R v Kamki (2013) – where there is some consciousness, they may be able to consent. Consideration has to be given to the degree of consciousness, the state of consciousness and determine the effects it would have had on V’s capacity to choose D cannot be ‘liable’ for rape under ss.74-76 SOA 2003. These are merely routes to determining non consent. D can only be liable for rape under s.1 SOA 2003 once the actus reus and mens rea of the offence are present (with no defences present).

Mens Rea of Rape:  D intentionally penetrated V and – assuming D’s mens rea as to V’s consent has not been dealt with via the conclusive or rebuttable presumptions in ss.75 and 76. Respectively – D did not have a reasonable belief in V’s consent.  In relation to whether, a belief was reasonable, this is to be determined having regard to all the circumstances, including any steps taken to ascertain whether V consents.  Intentional penetration (note, recklessness does not suffice).  D did not ‘reasonably believe’ that V consented.  D will satisfy this part of the mens rea where he: Intended V to lack consent Knew V lacked consent Was reckless as to consent Did not consider whether V was consenting or not Honestly but unreasonably believed that V consented  If these above are present the D clearly has an unreasonably belief in consent – no reasonable person would hold these states of mind about V’s consent (or lack, thereof) and still proceed with sexual intercourse.  Here, the reasonable belief test requires the jury to consider what is D’s subjective (i.e. honest) belief about V’s consent, measured then against the objective/standard of reasonableness applied by the jury or magistrate?  The objective limb is controversially, subjectivised. The reasonable belief requirement is qualified by the need to have regard to ‘all the circumstances’ including the ‘steps’ taken by D to ascertain whether V consented. Circumstances?  D’s age, sexual experience, learning disability may be relevant. In which case, we ask would the reasonable person sharing these characteristics have believed that V consented? - R v TS (2008)  Any other factor – what about unreasonable factors? Character defects? – R v B (2013)  Not a compulsory requirement, although any steps actually made by D to ascertain consent by V may be taken into account by the court....