SETU Sexual Offences Study Notes

The most serious of the sexual offences is rape.
Common Law Offence: Rape previously defined under common law and established on a statutory basis through the Criminal Law (Rape) Act 1981, Section 2.
Criteria for Rape: Under Section 2, a man commits rape if:
1. Actus Reus (Physical Act): He has sexual intercourse with a woman who, at the time of intercourse, does not consent to it.
2. Mens Rea (Mental State): At the time of intercourse, he knows that she does not consent or is reckless about whether she does or does not consent to it.
Penalty: A convicted individual can face a penalty of up to life in prison.

To be convicted of rape, an individual must possess the legal capacity to commit this offence.
Age of Consent: A boy under the age of 10 cannot be convicted of rape.
Marital Exemption: Historically, there was a marital exemption preventing husbands from being convicted of raping their wives, but this was abolished by Section 5 of the Criminal Law (Rape) (Amendment) Act 1990.
- However, under Section 5(2), prosecution for rape against a husband concerning his wife requires the consent of the Director of Public Prosecutions (DPP).

Rape is gender-specific, raising questions regarding post-operative transsexuals:
- Foy v Register for Births, Deaths and Marriages (2002): High court ruled against changing the birth certificate to reflect post-operative gender identity.
- Goodwin v United Kingdom (2002): The European Court of Human Rights ruled that the UK’s failure to recognize a transsexual applicant's new gender breached Article 8 of the European Convention on Human Rights.
- ECHR Act 2003: Irish courts must interpret Irish law in alignment with the European Convention.
- Gender Recognition Act 2015: This act enabled official recognition of a transsexual person's new gender identity for all legal purposes.

Constituent of the Rape Offence: Proof of sexual intercourse is required.
Criteria for Intercourse: Any degree of penetration for any short period suffices to satisfy the requirement of sexual intercourse in the context of rape.
- Case Reference:
- R v Gaston (1981): Established that proof of ejaculation is not necessary for a rape conviction.
- DPP v Dermody (1956): The court accepted that even a very small degree of penetration constituted intercourse.

Nature of Consent: Intercourse must occur without the consent of the woman. Consent must:
- Be the result of a conscious choice freely given.
- Exhibit full knowledge regarding the nature of the intercourse.
Key Cases on Consent:
- R v Mayers (1872): A woman asleep does not consent to intercourse.
- R v Long (1975): Alcohol-induced drunkenness does not automatically negate consent; the degree of drunkenness is critical.
- R v Bree (2007): A woman temporarily incapacitated due to alcohol is not consenting.
- R v Flattery (1877): Convicted for rape due to lack of consent when pretending to perform surgery.
- R v Williams (1922): Convicted of rape even without resistance, as consent was under false pretext.
- R v Linekar (1995): Not convicted because the woman had consented to intercourse despite payment issues.
- R(F) v DPP (2013): Inducement under false pretense regarding ejaculation constituted rape due to lack of informed consent.

Requirements for Mens Rea: The defendant must be aware that the woman was not consenting or behave recklessly in regard to her consent.
Definition of Recklessness: It is defined subjectively; merely acting unreasonably is insufficient for conviction.
Case Reference:
- DPP v Morgan (1975): An appeal elucidated that a genuinely held belief in consent, regardless of its reasonableness, can impact conviction outcomes. The jury must examine reasonable grounds for this belief alongside all other relevant circumstances.

Criminal Law (Rape) (Amendment) Act 1990, Section 4: Introduced another form of rape encompassing conduct previously classified as sexual assault.
- Definition of Rape under Section 4: Includes sexual assault characterized by:
1. Penetration (regardless of degree) of the anus or mouth by the penis.
2. Penetration (however slight) of the vagina by an object manipulated by another person.
- Legal Consequence: Offenders face life imprisonment upon conviction under this section.
- Inclusivity: This offense is not gender-specific, allowing for the possibility of female convictions in certain contexts.
- Ambiguity: It remains unclear if digital penetration falls under the definition of Section 4 rape. Moreover, irrespective of mens rea, it is presumed to align with sexual assault standards, complicated by Dolny (2009) ruling indicating a distinction between different assault sections under Non-Fatal Offences Against the Person Act 1997.