Rape

Rape

Rape is an offence defined in s.1 of the Sexual Offences Act 2003: 

 “A (A) commits an offence if;

1. he intentionally penetrates the vagina, anus or   mouth of another person (B) with his penis,

2. B does not consent to the penetration, and

3. A does not reasonably believe that B consents.”

Elements of Rape Offence

Actus Reus: 

• Penile penetration of the anus, mouth and vagina 

• Absences of V’s consent (s.76, 75, or 74 SOA) 

Mens Rea:

• An intention to penetrate

• No reasonable belief in consent- (in consideration with s.1 and s.76 or 75 of the SOA) 
  
  

According to s.1 definition of rape, ‘consent’ is relevant to both the AR and MR of rape. 

AR- consent

There are 3 sections under the SOA 2003 that engage with consent as AR of rape:

• S.76 SOA: Conclusive presumptions

• S.75 SOA: Evidential presumptions

• S.74 SOA: General definitions of consent

S.76 SOA- conclusive presumption

According to s.76(1) SOA, if either of the situations set out in s.76(2) exists, it will be conclusively presumed that V did not consent (AR) and D did not reasonably believe that V consented (MR).

Situations under s.76(2) are:

1. D intentionally deceived V as to the nature or purpose of the relevant act;

2. D intentionally induced V to consent to the relevant act by impersonating a person known personally to V.

D intentionally deceived V as to the nature or purpose of the relevant act;

• Deception as to the nature of the act means that D lies that it is something other than penile penetration. 

E.g.: Williams [1932] 1KB 340

• Deception as to the purpose of the act means that D lies that the purpose is something other than sexual gratification e.g. medical examination. 

D intentionally induced V to consent to the relevant act by impersonating a person known personally to V.

• The 2nd tri trigger is where D intentionally impersonates a person known personally to V to persuade V to consent to the penile penetration. 

E.g.: Elbekkay [1995] Crim LR 163 

• Prosecution's job is to prove beyond reasonable doubt that either of these circumstances exist. If it succeeds, consent acts as the AR and MR will be established and D cannot rebut this. 

S.75 SOA- Evidential presumption

S.75 provides 6 sets of circumstances where it is presumed that V did not consent (AR) and that D did not reasonably believe that V was consenting (MR). 

1. Use or threat of violence by anyone against the victim;

2. Use or threat of violence against another by anyone;

3. V was unlawfully detained and D was not;

4. V was asleep or unconscious;

5. V was not able to communicate consent because of disability;

6. V was involuntarily administered by anyone a substance capable of stupefying or overpowering themselves.

S.74 SOA- general definitions of rape

“A person consents if he agrees by choice, and has the freedom and capacity to make that choice.”

AGREES BY CHOICE

An issue here is when B agrees by choice if there is a deception that falls short of s.76 situations. 

There is no defined list of circumstances which are capable of vitiating consent and a broad common sense approach should be taken (R (on the application of Monice) v DPP [2018] EWHC 3508) 

R v Lawrance [2020] EWCA Crim 971

Does the lie relate to ‘matters so closely connected to the nature or purpose of sexual intercourse’ or ;matters relating to broad circumstances surround it’ Is the lie closely connected to the performance of the sexual act? (para 35)

• R v Lawrance [2020] EWCA Crim 971 upheld three circumstances: 

1.  not wearing a condom (as in Assange v Swedish Prosecution Authority [2011] EWHC 2849);

2. Not withdrawing before ejaculation having promised to do so (R (F) v DPP [2013] EWHC 945 (Admin)); 

3. Deceptions as to gender (as in McNally [2013] EWCA Crim 1051).

Consent and Intoxication

Bree [2007] EWCA Crim 84, where to CoA said: 

“Drunken consent is still consent.” [para. 32]“If, through drink, … V has temporarily lost her capacity to choose … she is not consenting. However, where V consumed alcohol, but nevertheless remains capable of choosing, this would not be rape. As a matter of practical reality, capacity to consent may evaporate well before V becomes unconscious. Whether this is so or not, however, is fact specific, depends on the actual state of mind of the individuals.” (para. 34)

• If V is unconscious due to intoxication, s. 75(2)(d) presumption might be triggered.

• If intoxication is involuntary and the substance was capable of overpowering or stupefying V, s. 75(2)(f) presumption might be triggered.

• Any other cases of intoxication need to be dealt with according to the definition of consent as set out in s. 74 when establishing consent as the actus reus of rape.

• In that case, whether V, who was voluntarily intoxicated, had the capacity to give consent is a question of facts to be determined by the jury.

Mens Rea

• Intention to Penetrate

• Reasonable belief in consent

  • Sections 76 and 75 create mens rea presumptions, just as they create presumptions of non-consent in the context of the actus reus (see video no. 2).

  • Where the presumptions do not apply or rebutted (based on s. 75), the mens rea is satisfied if the defendant does not reasonably believe that the victim consents.

In general, the lack of reasonable belief will cover where the defendant:

• Intends the victim lacks consent;

• Knows the victim lacks consents;

• Is reckless as to consent;

• Does not consider consent; or even

• Honestly but unreasonably believes that the victim consents.

S. 3(2) of the SOA invites the jury to consider whether a reasonable person would believe that the victim was consenting, based on all circumstances including any steps D has taken to ascertain V consents.