RAPE - edited 2021 - Class notes PDF

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Summary

RAPE1. Sexual Offences Act 2003, s – rape1. (1) A person (A) commits an offence if—1. (a) he intentionally penetrates the vagina, anus or mouth of another person(b) with his penis,2. (b) B does not consent to the penetration, and3. (c) A does not reasonably believe that B consents.2. (2) Whether a b...

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RAPE 1. Sexual'Offences'Act'2003,'s.1'–'rape' 1. (1)$ A$person$(A)$commits$an$offence$if—$ 1. (a)$ he$intentionally$penetrates$the$vagina,$anus$or$mouth$of$another$person$ (b)$with$his$penis,$ 2. (b)$ B$does$not$consent$to$the$penetration,$and$ 3. (c)$ A$does$not$reasonably$believe$that$B$consents.$ 2. (2)$Whether$a$belief$is$reasonable$is$to$be$determined$having$regard$to$all$ the$circumstances,$including$any$steps$Ahas$taken$to$ascertain$whether$B$ consents.$ 3. (3)$ Sections$75$and$76$apply$to$an$offence$under$this$section.$ 4. (4)$A$person$guilty$of$an$offence$under$this$section$is$liable,$on$conviction$on$ indictment,$to$imprisonment$for$life.$ ! !

! ACTUS REUS

1. D = male (gender specific offence) Victim however can be male or female. R v R: Rape is possible between a man and wife. 2. Penile penetration -‘Penetration is a continuing act from entry to withdrawal’ (s.79(2)) Kaitamaki: Pre 2003 Act decision – man who continues to have intercourse after consent is withdrawn commits the actus reus of rape. 3. Relevant orfices (anus, mouth or vagina) – R v Ismail 4. V does not consent

MENS REA

1. Intentional penetration 2. D does NOT reasonably believe that the Victim consents. Do not forget to mention s.1(1)(c) – honest belief in consent is not enough. The D’s belief that the V consents must be ‘reasonable’ – DPP v Morgan Reasonableness has to be assessed according to s.1(2) of SOA 2003: ‘having regard to all the circumstances including any steps taken to ascertain whether the V consents (R v B) Remember: Rape is a Basic intent crime – R v Lee

ACTUS REUS:

‘Penetration is a continuing act from entry to withdrawal’ (s.79(2))

Kaitamaki Principle: Pre 2003 Act decision – man who continues to have intercourse after consent is withdrawn commits the actus reus of rape.

R(on the application of F) v DPP (2013) Principle: Ejaculation is not necessary.

R v R: Principle: Rape is possible between a man and wife.

In most cases of rape the main problem for the prosecution is proving absence of consent. The problem has been described as linked with the ‘infinite circumstances of human behaviour, usually taking place in private without independent evidence, and the consequent difficulties of proving this very serious offence’ (Bree [2007] per Hallett J at [36]).

PRESUMPTIONS

Conclusive (nonrebuttable)

Evidential (rebuttable)

Presumptions

Conclusive presumptions: By s.76 it is conclusively presumed both that V did not consent and D did not reasonably believe V to consent in the following circumstances:

The job of the prosecution, therefore, is to try to establish beyond reasonable doubt either of these two circumstances. If it succeeds the case is won without having to establish anything else.

By s.76 it is conclusively presumed

that V did not consent

D did not reasonably believe V to consent in the following circumstances:

Thus satisfying point #4 of the actus reus + point #2 of the mens rea.

Section 76 (b) (2)...(a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act; (c) (b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.

Section 76 (2)(a): Williams [1923]: Facts: D, a singing teacher, told V, his pupil that it was necessary to perform an act in order to improve her singing. She agreed, not knowing or understanding that the act she was engaging in was sexual intercourse. Principle: It was held that V’s consent was vitiated by fraud as to the nature and quality of the act. What V was consenting to and what she thought she was consenting to were completely different in their nature.

Linekar [1995]:

Principle: It was held not to be a deception as to the nature and quality of the act for a person to trick a prostitute into having intercourse without payment.

(However, it is possible that this case might be decided differently under the SOA 2003 since V could plausibly argue that although she consented to the nature of the act, she did not consent to its purpose. The purpose for her after all was financial not sexual).

R v Devonald (2008): Principle: It was held to be deception as to purpose of the act when V thought the purpose was sexual, whereas D intended the purpose to be humiliation. (Section 76 SOA 2003 construed widely)

Jheeta [2007]:

D began a sexual relationship with C. Whenever C tried to end her relationship with D, he sent her text messages purportedly from different ‘police officers’ telling her it was her duty to sleep with him, otherwise she would receive a fine. D was arrested and admitted sexual intercourse had taken place. The prosecution sought to rely on s.76(2)(a) arguing that C was deceived as to the nature and purpose of the Act. The Court of Appeal ruled that s.76 was inapplicable. C had not been deceived as to the nature or purpose of the sexual intercourse but only as to the situation she was in. This did not mean that she was consenting. Rather, the prosecution were compelled to do their job properly, i.e. to prove her absence of consent by reference to s.74, which it succeeded in doing. The effect of the deception was that the complainant had not exercised a free choice as to whether to have intercourse or not. He was convicted of rape.

Principle: The Court of Appeal stated that where this presumption is raised it should be the subject of ‘stringent scrutiny’ since, if accepted, it is conclusive on the question of guilt.

Court stated that the strongest case of deception as to the purpose would be where D has deceived B as to the medical need for the particular procedure as in Green (2002).

R v Piper (2007):

Facts: V agreed to be measured for a bikini by D on the (false) basis that it was necessary to determine her modeling potential, whereas in fact it was for D’s sexual pleasure. D’s conviction of sexual assault was upheld.

R v B (2013): Held: The Court of Appeal confirmed that, in so far as the decisions in Jheeta and Devonald conflict, the decision in Jheeta is to be preferred to that of Devonald.

R v McNally (2013):

Facts: D deceived V as to her gender, pretending to be male thereby persuading V to become sexually acquainted with her. Held:The Court of Appeal held that this was a case falling under section 74, not section 76, as there had been no deception as to the nature or purpose of the Act.

Section 76(2)(b)

Elbekkay [1994]:

Facts: Before the SOA 2003, a man who induced a person to have sexual intercourse with him by impersonating their partner committed rape. So it was rape when the defendant, the twin brother of V’s boyfriend, had intercourse with V by pretending to be the brother. Principle: The SOA 2003 extends the old rules on impersonation in that consent is vitiated not only when it is the complainant’s partner or spouse who is impersonated but also when it is any person ‘known personally to the complainant’.

Section 76: questions of procedure The procedure, where there is an issue that consent may be vitiated by one of the circumstances in s.76, is that the prosecution will seek to establish the existence of that circumstance. If that fails, the prosecution will then seek to negate consent by relying on s.74 ( as in Jheeta (2007)).

Evidential Presumptions: By s.75, where one of six different circumstances occur, it is a rebuttable evidential presumption that the complainant did not consent to the relevant act, and that the defendant did not believe that the complainant consented to the relevant act.

(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 thetime of the relevant act; (d) the complainant was asleep or otherwise unconscious at the time of therelevant act; (e) because 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) any 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 overpowered at the time of the relevant act.

Lewis MBA (2012): Principle: Where it proved by the prosecution that one of the sets of facts listed in section 75(2) existed and the defendant was aware they existed, 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 open to the defendant to introduce evidence that in fact the mens rea or actus reus of rape did not exist. Lartner (1995):

Principle: The V was asleep throughout the act of intercourse. Although she had not actively opposed or resisted the sexual intercourse she had not positively consented to it and so the actus reus of rape was made out.

Malone (1998): Principle: The victim was so drunk she was unaware that the defendant was having sexual intercourse with her, but still the actus reus of the offence was made out. All these situations concern circumstances where it is unlikely, without being impossible, that V consented and that D had reasonable grounds for believing that. The procedure to be followed is that the prosecution must prove beyond reasonable doubt that the circumstance existed (e.g. that V was asleep when D had intercourse with V)

Section 74 – the statutory definition of consent

‘a person consents if he agrees by choice, and has the freedom and capacity to make that choice’.

Olugboja [1982];

Dunn LJ : “the dividing line ... between real consent on the one hand and mere submission on the other may not be easy to draw. Where it is to be drawn in a given case is for the jury to decide, applying their combined good sense, experience and knowledge of human nature and modern behaviour to all the relevant facts of that case.”Reluctant acquiescence amounts to consent; submission does not. The distinction is not always easy to draw.

Reluctant acquiescence

CONSENT

Mere submission

NOT CONSENT

Doyle [2010]:

Pitchford LJ : there are circumstances in which the jury may well require assistance as to the disctinction to be drawn between free exercise of choice on the one hand, especially in the context of a long term and loving relationship, and unwilling submission to demand in fear of more adverse consequences from refusal on the other.

Kirk [2008]:

Approved the distinction drawn by the trial judge between consent and ‘mere submission’.

R v W (2015):

Principle: The trial judge had directed the jury to consider: ‘Was the complainant freely consenting to sexual intercourse or was she submitting to a demand that she felt unable to resist’.

R v Ali and Ashraf [2015]: Principle: The Court of Appeal ruled that in the case of a vulnerable, immature complainant, who had been groomed by the defendants, the mere fact that from the evidence presented the latter appeared to consent to intercourse did not necessarily mean the jury were bound to accept that this apparent consent was freely chosen.

So even though the evidence of the case indicated that the victim had consented, it was not necessary for the jury to accept that the consent was freely chosen by the victim.

Intoxication and consent

EFFECT?

It can affect the capacity to consent

It can affect V’s freedom of choice

It may also disinhibit, which is perfectly consistent with consent.

Bree [2007]:

“…you will need to consider the evidence carefully… as to what was M’s state of consciousness or unconsciousness at the time of penetration, and decide firstly was she in a condition in which she was capable of making a choice one way or the other. If you are sure that she was not, then she was obviously not consenting.”

Principle: The fact of intoxication may affect both a person’s capacity to consent and their freedom of choice. It may also disinhibit, which is perfectly consistent with consent.

The position appears to be as follows

If the alcohol renders the V unconscious or prevents the V from knowing what is happening

If the effect of alcohol prevents the V from communicating their lack of consent

Then the V does NOT consent due to lack of capacity.

Then the V does NOT consent due to lack of free choice.

Questions of proof will be paramount.

If the effect of alcohol is to cause the V to engage in sexual activity, which they would not have done if sober

The V still does consent.

Dougal (2005): ‘A drunken consent is still consent’.

Kamki (2013):

If A has intercourse with B concealing from her that he is HIV positive, does he commit the actus reus of rape, given that consent would not have been granted had B known of his condition? The presumptions do not apply – A does not deceive B as to the nature or purpose of the act. Guilt depends therefore on whether consent is vitiated. B [2006]: the Court of Appeal ruled that it was not vitiated for the purpose of the offence of rape but it was for the purpose of s.20. The transmitter of the disease would therefore be guilty under s.20.

Deception and consent

Assange v Sweden (2011): Principle: Conditional consent by V (for sexual intercourse on the condition that D used a condom) is a matter to be dealt with under section 74, not section 76 (deception as to the ‘nature of the act’). The woman was held not to have consented to the intercourse when he failed to wear one and the D was held liable.

R (on the application of F) v DPP [2013]:

A similar decision was reached when the condition was that the man should wear a condom or otherwise not ejaculate.

R (Monica) v DPP (Boyling, interested party) [2018]:

Principle: It was held that a deception, without other vitiating factors such as oppressive behaviour, only vitiates consent when it can be brought within s.76.

In case deception does not fall under section 76, it can still form the basis for arguing lack of consent under section 74.

Capacity to consent: D CC v LS (2010):

Principle: A person with a mental disorder might lack capacity to consent to sexual relations either generally because they do not understand what sex is or in the particular circumstances of the case.

MENS REA:

DPP v Morgan [1976]:

At common law the prosecution were required to prove that the defendant lacked an honest belief that the victim was consenting. The defendant could escape liability even if his honest belief was not based upon reasonable grounds.

This created serious problems for victims in court. Under the SOA 2003 s.1(1)(c), the mens rearequirement has changed. Honest belief in consent is not enough. The defendant’s belief that the victim consents must be reasonable.

Ciccarelli (2011):

Principle: The trial judge is entitled to withdraw the question as to whether D’s belief was reasonable if there was insufficient evidence It was emphasized that the defendant, to rebut the presumption of mens rea, had to introduce evidence that he reasonably believed the victim consented. It was not enough just to say he did so believe. B [2013]:

Principle: A delusional belief in consent is, by definition, an unreasonable one.

Illustrations: D tells V he is Brad Potts, a famous film star in order to secure her consent to sexual activity. He is not Brad Potts although he looks a lot like him. V engages in sexual activity with him believing him to be Brad Potts. This is not a case where the presumption applies because, although V believes D to be Brad Potts, her mistaken belief is not about the person she is having sex with but about his name and attributes. This is because Brad Potts is not known personally to her. This is not to say that V does consent to the activity but only that, if she does not consent, it is not by virtue of the conclusive presumption. To secure a conviction, the prosecution will need to establish that s.74 applies, i.e. that, given the deception, the activities engaged in were not ‘freely chosen’. D spikes V’s drink with alcohol for the purpose of disinhibiting V. V then has intercourse with D, as D planned. V then discovers the deception and calls the police. D is prosecuted for rape. The prosecution must normally prove: a. that V did not consent, and b. that D did not reasonably believe that V did consent. In this case, however, the s.75(2)(f) presumption may apply. The procedure will be that if the prosecution can prove beyond reasonable doubt that D, or someone else, had spiked V’s drink/food with an intoxicant and that the amount was capable of or sufficient to stupefy V or permit her to be overpowered, then D will be convicted, unless he can rebut the presumption.

(Read illustration on page 90-91 of the study guide)....