- RAPE
- Reform Background -
- Prior to 2003, most of the sexual offences in England and Wales were governed by the
Sexual Offences Act 1956 - merely a consolidation of various statutes dating back to the
19th century. By the end of the 20th century, it was felt that the Sexual Offences Act
1956 was no longer fit for purpose (described as “archaic, incoherent and discriminatory”
by Lord Falconer), thus introducing, the Sexual Offences Bill of 2003.
- It was also felt that the 1956 Act failed to convey the morality and the sexual attitudes
and practises of the 21st century. Further, essential concepts like consent and capacity
remained ill-defined under the old law.
- 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 Victorian laws on sex offences and to provide a clear,
coherent and effective set of laws that increase protection, enable the appropiate
punishment of abusers and ensure that the law is fair and non-discriminatiry” - Home
Office Press Release.
- Criticisms:
- Overlap of offences? E.g. Rape (s.1) and Assault by penetration (s.2)
- Criminalization of consensual conduct? E.g. child sexual offences such as child on child
sexual offences. The worry was criminalizing sexual conduct between 14 and 15 year
olds, for example.
- Offences:
- Rape - s.1
- Assault by penetration - s.2
- Sexual assault - s.3
- Causing someone to engage in sexual activity without consent - s.4
- An offence contained in s.1 SOA 2003:
- S.1(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 (ie. where V does not consent). There is no
‘result element’. As such, causation is not really in issue under the actus reus of
rape.
, - Actus Reus of Rape -
- D penetrated V’s vagina, anus or mouth with his penis and at the time V did not consent
to the penetration.
- Who can commit rape? - penetration must be penile, thus it is a gendered offence (i.e.
only male perpetrators re: female or male victims). This is because penile penetration
carries risks that other forms of assault or penetration do not, such as disease or
pregnancy.
- Female perpetrators? Cannot commit rape against females or males. Alternative
offences? See s. 2 SOA 2003: assault by penetration by females against both sexes and
s. 4 SOA 2003: causing a person to engage in sexual activity without consent by
females against both sexes.
- So called ‘forced-to-penetrate’ cases?
- Women can, however, be accomplices to rape? E.g. if D1, a man, rapes V, and D2, a
woman, assists or encourages D1, D2 can be an accomplice.
- Can a husband rape his wife?
- R v. R [1991] 4 AII ER 481 - leading authority that changed the law on marital rape. Up
until 1991, a wife was deemed to have given consent to sexual intercourse with her
husband upon marriage. This was known as the marital rape exemption.
- Penetration -
- S. 79(2) SOA 2003: Penetration is a continuing act from entry to withdrawal. The
slightest penetration will count, it does not need to be up to the point of ejaculation.
- S. 79(3) SOA 2003: References to a part of the body include references to a part
surgically constructed (in particular, through gender reassignment surgery). Thus, a
transgender man (post-operative transgender) can commit rape with a reconstructed
penis.
- S. 79(9) SOA 2003 - “Vagina” includes the vulva.
- R v. F [2002] EWCA Crim 2936 - confirmed that “vagina” included the vulva.
- R v. Kaitamaki [1985] AC 147 - If D is having consensual sex with V and then V
revokes consent, what happens then? D must withdraw from the sexual act otherwise
this can be liable for rape.
- R v. Leaver [2006] EWCA Crim 2988 - this confirms the position in Kaitamaki.
- Inclusion of mouth and anus in the actus reus?
- We can also envisage male victims in this scenario. This is a fairly recent phenomenon,
with the law only being extended to males in the 1990s.
- The inclusion of the mouth in actus reus has only been included in 2003. Previously, it
would have been known as indecent assault.
- R v. Ismail [2005] EWCA Crim 397 - Court held that for the purposes of sentencing,
there is no need to distinguish the part of the body that is penetrated.
- Conditions for V’s non-consent -
- Three possible routes to determining V’s non-consent. A sliding scale:
- Reform Background -
- Prior to 2003, most of the sexual offences in England and Wales were governed by the
Sexual Offences Act 1956 - merely a consolidation of various statutes dating back to the
19th century. By the end of the 20th century, it was felt that the Sexual Offences Act
1956 was no longer fit for purpose (described as “archaic, incoherent and discriminatory”
by Lord Falconer), thus introducing, the Sexual Offences Bill of 2003.
- It was also felt that the 1956 Act failed to convey the morality and the sexual attitudes
and practises of the 21st century. Further, essential concepts like consent and capacity
remained ill-defined under the old law.
- 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 Victorian laws on sex offences and to provide a clear,
coherent and effective set of laws that increase protection, enable the appropiate
punishment of abusers and ensure that the law is fair and non-discriminatiry” - Home
Office Press Release.
- Criticisms:
- Overlap of offences? E.g. Rape (s.1) and Assault by penetration (s.2)
- Criminalization of consensual conduct? E.g. child sexual offences such as child on child
sexual offences. The worry was criminalizing sexual conduct between 14 and 15 year
olds, for example.
- Offences:
- Rape - s.1
- Assault by penetration - s.2
- Sexual assault - s.3
- Causing someone to engage in sexual activity without consent - s.4
- An offence contained in s.1 SOA 2003:
- S.1(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 (ie. where V does not consent). There is no
‘result element’. As such, causation is not really in issue under the actus reus of
rape.
, - Actus Reus of Rape -
- D penetrated V’s vagina, anus or mouth with his penis and at the time V did not consent
to the penetration.
- Who can commit rape? - penetration must be penile, thus it is a gendered offence (i.e.
only male perpetrators re: female or male victims). This is because penile penetration
carries risks that other forms of assault or penetration do not, such as disease or
pregnancy.
- Female perpetrators? Cannot commit rape against females or males. Alternative
offences? See s. 2 SOA 2003: assault by penetration by females against both sexes and
s. 4 SOA 2003: causing a person to engage in sexual activity without consent by
females against both sexes.
- So called ‘forced-to-penetrate’ cases?
- Women can, however, be accomplices to rape? E.g. if D1, a man, rapes V, and D2, a
woman, assists or encourages D1, D2 can be an accomplice.
- Can a husband rape his wife?
- R v. R [1991] 4 AII ER 481 - leading authority that changed the law on marital rape. Up
until 1991, a wife was deemed to have given consent to sexual intercourse with her
husband upon marriage. This was known as the marital rape exemption.
- Penetration -
- S. 79(2) SOA 2003: Penetration is a continuing act from entry to withdrawal. The
slightest penetration will count, it does not need to be up to the point of ejaculation.
- S. 79(3) SOA 2003: References to a part of the body include references to a part
surgically constructed (in particular, through gender reassignment surgery). Thus, a
transgender man (post-operative transgender) can commit rape with a reconstructed
penis.
- S. 79(9) SOA 2003 - “Vagina” includes the vulva.
- R v. F [2002] EWCA Crim 2936 - confirmed that “vagina” included the vulva.
- R v. Kaitamaki [1985] AC 147 - If D is having consensual sex with V and then V
revokes consent, what happens then? D must withdraw from the sexual act otherwise
this can be liable for rape.
- R v. Leaver [2006] EWCA Crim 2988 - this confirms the position in Kaitamaki.
- Inclusion of mouth and anus in the actus reus?
- We can also envisage male victims in this scenario. This is a fairly recent phenomenon,
with the law only being extended to males in the 1990s.
- The inclusion of the mouth in actus reus has only been included in 2003. Previously, it
would have been known as indecent assault.
- R v. Ismail [2005] EWCA Crim 397 - Court held that for the purposes of sentencing,
there is no need to distinguish the part of the body that is penetrated.
- Conditions for V’s non-consent -
- Three possible routes to determining V’s non-consent. A sliding scale:
