Rape Notes Section One - SOA 2003 PDF

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Rape Notes Section One - SOA 2003...

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Rape – The Sexual Offences Act 2003 Section 1 – “Intentional penetration of the vagina, anus or mouth with his penis and C does not consent to the penetration and A does not reasonably 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.”

Actus Reus - P penetrated the vagina, mouth or anus of V Only a man can commit rape. Man and woman can be victims of rape, as the scope of rape of rape has been widened to include the mouth and anus. A woman can assist in the commission of rape (DPP V R and B) but cannot commit the act of rape, will instead be guilty of other offences under the act dependent on the facts of the case. Only penetration is required for the actus reus to be satisfied. Section 79 (2) states that penetration is a continuing act started from entry to withdrawal. This means that if the V withdraws consent despite previously consented, and D fails to withdraw within a reasonable amount of time then the D will be guilty of rape.

- V does not consent to the penetration (In one of three ways) Conclusive presumptions under section 76 cannot be rebutted by the D’s defence. a) D intentionally deceived the complainant as to the nature/purpose of the relevant act S76(2A)

R V Williams (1923) where the D told the V that the act would improve the V’s singing. The V was deceived as to the nature/purpose of the relevant act as she did not consent to the sexual intercourse but the singing lessons. Held, there was no consent.

R V B (2006) where a D who failed to disclose his HIV status was held not to have lied about the nature of the act, as they had both agreed to the relevant act (sexual intercourse).

R V Linekar (1995) where a man told a prostitute that he would pay for sex, following the intercourse he ran off without payment. He was found not guilty of rape as the D had not been lied to the nature of the act (sexual intercourse) but rather when the payment would be given by the D.

R V Flattery (1977) defendant told a woman with learning difficulties that he was performing surgery on her when in fact he was performing sexual intercourse. It was held her consent was vitiated by fraud as to the nature and quality of the act.

R V Devonald (2008) the defendant, believing the victim to have treated his daughter badly during their relationship, posed as a young woman to correspond with the victim online. Using this persona, the defendant tricked the victim into masturbating in front of a webcam with the purpose of embarrassing the victim. The defendant was convicted of the offence of causing activity without consent under s.4 of the Sexual Offences Act 2003. The ‘purpose’ of the act encompassed more than just personal sexual gratification in this instance: the victim’s purpose encompassed sexual gratification of a non-existent woman, when the true purpose was his humiliation. As s.76 applies to instances of deceit as to the nature or purpose of the act, it did not matter that the victim was aware that the act was sexual in nature.

R V Jheeta (2007) C received anonymous messages from D coercing her into sexual intercourse.

b) D intentionally induced the C to consent to the relevant act by impersonating a person known personally to the complainant under S76(2B)

R V Elbekkay (1995) where the D had been out drinking, the V thought that her boyfriend had climbed into bed with her, after she realized that the D was not her boyfriend she hit him and he was found guilty of rape. This case set out that the person D is impersonating must be someone known personally to the victim such as a boyfriend or a husband. It cannot be anyone famous, someone whom the V does not know.

There are evidential presumptions of consent under section 75 which can be rebutted by the D’s defence if sufficient evidence is adduced. In R V Cicarelli (2011) it was held that the evidence to rebut a presumption must be more than fanciful or speculative.

There will be an evidential presumption of no consent if… a. At the time of the act or immediately before the act began violence was used against the C or the C feared violence. b. At the time of the act or immediately before it began C feared that violence was being used against or would be used against another person. c. C was and D was not unlawfully detained at the time of the relevant act. d. C was asleep or unconscious at the time of the relevant act. e. C’s physical disability meant that C at the time of the act would not have been able to communicate to D whether the C consented. f. Administered by the D, C is given a substance without C’s consent which was capable of causing the C to be stupefied or overpowered at the time of the relevant act.

Or there will be a presumption of no consent under S74 which looks at the general meaning of the word. “A person consents if he agrees by choice and has the freedom/capacity to make that choice” under S74. a. There will only be consent if the C agrees In R V Larner and Castleton (1995) the C was found to not have agreed to the sexual intercourse because she was asleep. b. The C must have the capacity to make the choice In R V Gillick (1986) it was held that a child has sufficient competence to consent to medical matters and a similar approach has been taken in relation to sexual matters. c. C must have the freedom to make the choice In R V Olugboja (1982) set out that every consent involves a submission but by no means follows that a mere submission involves consent. Here two girls were raped on the way back from a disco and the D appealed on the basis that V2 did not resist the rape. Held, that there was no consent but submission. (set out that there is a difference between consent and submission). In R V Jheeta (2007) D pretended to be a police officer and insisted that the D had sex with him. It was held that there was no consent but submission. d. The C consented by mistake R V Clarence (1988) set out that mistakes can only be as to the nature of the act or the identity of the D as set out under the conclusive presumptions.

- Mens rea The mens rea for rape will be satisfied if it can be shown that -

the defendant intended to penetrate: s1(1)(a)

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And the defendant did not reasonably believe that the victim consented to the penetration: s1(1)(c).

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According to section 1(2) ‘whether a belief is reasonable is determined having regard to all the circumstances, including any steps the defendant has taken to ascertain whether the victim consent.’ Regarding, ‘all the circumstances’, it is a matter of judicial discretion what weight will be attached to characteristics such as D’s age, general sexual experience, any learning disability, etc....