Introduction.
Sexual offence crimes are more prevalent and gendered offences.
Prevalence:
- In 2020 there were 600 homicide offences recorded by police.
- In 2020 there were over 55,000 rapes.
Police recorded crime does not have a true prevalence of rape and sexual offences –
sexual offences are often not reported.
Over 83% of victims do not record their assault to the police.
Gendered offence:
- Crime mostly perpetrated by men and where women are overly represented
as victims.
- The crime survey estimates for the year ending March 2020, there were
773,000 adults (aged 16-74) who were victims of sexual assault (including
attempts) in the past year.
- There was over 4 times more female victims than male victims in the survey.
Old Law: Sexual Offences Act 1956:
- Criticised as ‘archaic, incoherent and discriminatory’ (Lord Falconer,
introducing the Sexual Offences Bill in the House of Lords) and as old-
fashioned, ‘cumbersome and inadequate’ (J. Temkin, ‘Getting It Right: Sexual
Offences Law Reform’ (2000) 150 New Law Journal 1169).
Current law: Sexual Offences Act 2003:
- 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
appropriate of abusers and ensure that the law is fair and non-discriminatory’,
Home Office Press Release.
Rape:
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 – there does not need to be any particular result, only the
conduct.
, Perpetrators and penetration.
Actus reus:
S.1(1) SOA 2003,
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:
Penile penetration – only men.
- Resonates with the general public’s understanding of the term.
- It was considered more important due to the risks with penile penetration
(e.g., pregnancy and STI/STD’s).
- It was believed that penile penetration should be separated from other forms
of rape/sexual assault in the Act.
S.2 SOA 2003.
- Penetration by fingers, sex toys or other objects are captured under section 2
of the Act (Assault by penetration).
- Women and men can be liable under this act.
S4 SOA 2003.
- Covers a woman forcing a man to have sex with her.
- The women are not considered rapists, therefore do not carry the same
stigma – this causes fair labelling issues.
Women can be accomplices to rape.
- Where she aids the conduct of rape (penile penetration) unto another, she will
be liable for rape through the legal doctrine of accomplice liability (she will
not be a principal offender but will be liable as an accomplice).
Marital rape.
- Marital rape was made an offence through the case of R v R (1991) 4 All ER
481.
- Before the offence, a wife was deemed to have given consent for sexual
intercourse upon the date of their marriage – the marital rape exemption.
Penetration:
S.79(2) SOA 2003: Penetration is a continuing act from entry to withdrawal.
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).
S.79(9) SOA 2003: ‘Vagina’ includes the vulva.
- In R v F (2002) EWCA Crim 2936, the term ‘vagina’ was deemed to mean
the general sense of the female genital area, not the medical term, meaning
that vaginal penetration occurs as soon as there is entry of the vulva.
Revocation of consent after penetration –
D will still be deemed to have raped V where V revokes their consent during the act.
- R v Kaitamaki (1985) AC 147: D penetrated V with her consent, when D
became aware that she was no longer consenting he did not desist. He
continued to penetrate her after this, and he was convicted of rape. This is
because rape is a continuing act.
- R v Leaver (2006) EWCA Crim 2988: confirmed the position of Kaitamaki
under the new law in 2003.
Sexual offence crimes are more prevalent and gendered offences.
Prevalence:
- In 2020 there were 600 homicide offences recorded by police.
- In 2020 there were over 55,000 rapes.
Police recorded crime does not have a true prevalence of rape and sexual offences –
sexual offences are often not reported.
Over 83% of victims do not record their assault to the police.
Gendered offence:
- Crime mostly perpetrated by men and where women are overly represented
as victims.
- The crime survey estimates for the year ending March 2020, there were
773,000 adults (aged 16-74) who were victims of sexual assault (including
attempts) in the past year.
- There was over 4 times more female victims than male victims in the survey.
Old Law: Sexual Offences Act 1956:
- Criticised as ‘archaic, incoherent and discriminatory’ (Lord Falconer,
introducing the Sexual Offences Bill in the House of Lords) and as old-
fashioned, ‘cumbersome and inadequate’ (J. Temkin, ‘Getting It Right: Sexual
Offences Law Reform’ (2000) 150 New Law Journal 1169).
Current law: Sexual Offences Act 2003:
- 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
appropriate of abusers and ensure that the law is fair and non-discriminatory’,
Home Office Press Release.
Rape:
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 – there does not need to be any particular result, only the
conduct.
, Perpetrators and penetration.
Actus reus:
S.1(1) SOA 2003,
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:
Penile penetration – only men.
- Resonates with the general public’s understanding of the term.
- It was considered more important due to the risks with penile penetration
(e.g., pregnancy and STI/STD’s).
- It was believed that penile penetration should be separated from other forms
of rape/sexual assault in the Act.
S.2 SOA 2003.
- Penetration by fingers, sex toys or other objects are captured under section 2
of the Act (Assault by penetration).
- Women and men can be liable under this act.
S4 SOA 2003.
- Covers a woman forcing a man to have sex with her.
- The women are not considered rapists, therefore do not carry the same
stigma – this causes fair labelling issues.
Women can be accomplices to rape.
- Where she aids the conduct of rape (penile penetration) unto another, she will
be liable for rape through the legal doctrine of accomplice liability (she will
not be a principal offender but will be liable as an accomplice).
Marital rape.
- Marital rape was made an offence through the case of R v R (1991) 4 All ER
481.
- Before the offence, a wife was deemed to have given consent for sexual
intercourse upon the date of their marriage – the marital rape exemption.
Penetration:
S.79(2) SOA 2003: Penetration is a continuing act from entry to withdrawal.
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).
S.79(9) SOA 2003: ‘Vagina’ includes the vulva.
- In R v F (2002) EWCA Crim 2936, the term ‘vagina’ was deemed to mean
the general sense of the female genital area, not the medical term, meaning
that vaginal penetration occurs as soon as there is entry of the vulva.
Revocation of consent after penetration –
D will still be deemed to have raped V where V revokes their consent during the act.
- R v Kaitamaki (1985) AC 147: D penetrated V with her consent, when D
became aware that she was no longer consenting he did not desist. He
continued to penetrate her after this, and he was convicted of rape. This is
because rape is a continuing act.
- R v Leaver (2006) EWCA Crim 2988: confirmed the position of Kaitamaki
under the new law in 2003.
