SEXUAL OFFENCES
Focused on rape, sexual offences act 2003
• s1 SOA 2003: Rape
• Consent: Conclusive and Evidential Presumptions (s75 & s76)
• s74 SOA 2003: Consent – General
- Non-violent threats or inducements
- Intoxicated complainants
- Mistaken (or deceptive) consent
• Mens Rea of Rape: D’s has reasonable belief in the victim’s consent
• s2 SOA 2003: Assault by Penetration
• s3 SOA 2003: Sexual Assault
CONTEXT & DEVELOPMENT OF THE LAW
• Sexual offences Amendment Act: Old law governing sexual offences
outdated, discriminatory and confused (Morgan v DPP, R v R —
“possible for husband to rape his wife”). Aim of report looking to SO ,
how can be modernise the law, update it?
• 2000: How can we improve the law? Protect the vulnerable? Reform
covering areas including: Substantive law, investigation and trial
process, sentencing system.
• Focus on protecting the vulnerable, ‘victim’ and prevention
orientated
• The problem of the attrition rate in rape and some recent statistics
two main changes, victim can be both men and women
- There are 2 main changes coming with the Act:
- 1) Both women and men can be victim of rape
- 2) The meaning of consent
- Evidential problems, they often know each other. Although report to police has
increased, over the same period: convictions only 11%. Very difficult area.
RAPE: S1 SOA 2003
• A person (A) commits an offence if-
• He intentionally penetrates the vagina, anus or mouth of another
person (B) with his penis,
• B does not consent to the penetration, and
• A does not reasonably believe B consents to the penetration
• 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
• The offence carries a maximum sentence of life imprisonment.
• Huge increase in reporting to police, most of the victims were women.
ELEMENTS OF THE OFFENCE
ACTUS REUS
• D penetrated the vagina, anus or mouth of V
• V did not consent to the penetration
MENS REA
• D’s intention to penetrate the vagina, anus or mouth of V with his
penis
AND
• D did not reasonably believe that V consented to the penetration
- If a woman forces a man, that would be a different section (4).
- Husband can rape his wife: R v R 1991
- The defendant must be over the age of criminal responsibility — 10 years old
ELEMENTS OF THE OFFENCE: AR
• Penetration is ‘a continuing act from entry to withdrawal’ s79(2) SOA
2003 — carries the same penalty. — Objects: s2 offence, assault by
penetration, worn can be guilty of assault by penetration. There can be
rape even without ejaculation.
• The absence of V’s consent is an element of the AR — they can change
their mind.
• AR: did the victim consent?
• MR: did the D reasonably believed that V consented?
ESTABLISHING ABSENCE OF CONSENT
• In theory, the 2003 Act makes it easier to establish the offence.
• The Act has 3 separate routes by which the prosecution may seek to
establish absence of consent: (do it in order)
i. S76: conclusive presumptions (cannot be rebutted/denied)
ii. S75: evidential presumptions (rebuttable by the defence)
iii. S74: general definition of consent
CONCLUSIVE PRESUMPTIONS: s.76(1)
• In certain situations, it will be conclusively presumed that:
a) That the complainant did not consent to the relevant act, and
Focused on rape, sexual offences act 2003
• s1 SOA 2003: Rape
• Consent: Conclusive and Evidential Presumptions (s75 & s76)
• s74 SOA 2003: Consent – General
- Non-violent threats or inducements
- Intoxicated complainants
- Mistaken (or deceptive) consent
• Mens Rea of Rape: D’s has reasonable belief in the victim’s consent
• s2 SOA 2003: Assault by Penetration
• s3 SOA 2003: Sexual Assault
CONTEXT & DEVELOPMENT OF THE LAW
• Sexual offences Amendment Act: Old law governing sexual offences
outdated, discriminatory and confused (Morgan v DPP, R v R —
“possible for husband to rape his wife”). Aim of report looking to SO ,
how can be modernise the law, update it?
• 2000: How can we improve the law? Protect the vulnerable? Reform
covering areas including: Substantive law, investigation and trial
process, sentencing system.
• Focus on protecting the vulnerable, ‘victim’ and prevention
orientated
• The problem of the attrition rate in rape and some recent statistics
two main changes, victim can be both men and women
- There are 2 main changes coming with the Act:
- 1) Both women and men can be victim of rape
- 2) The meaning of consent
- Evidential problems, they often know each other. Although report to police has
increased, over the same period: convictions only 11%. Very difficult area.
RAPE: S1 SOA 2003
• A person (A) commits an offence if-
• He intentionally penetrates the vagina, anus or mouth of another
person (B) with his penis,
• B does not consent to the penetration, and
• A does not reasonably believe B consents to the penetration
• 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
• The offence carries a maximum sentence of life imprisonment.
• Huge increase in reporting to police, most of the victims were women.
ELEMENTS OF THE OFFENCE
ACTUS REUS
• D penetrated the vagina, anus or mouth of V
• V did not consent to the penetration
MENS REA
• D’s intention to penetrate the vagina, anus or mouth of V with his
penis
AND
• D did not reasonably believe that V consented to the penetration
- If a woman forces a man, that would be a different section (4).
- Husband can rape his wife: R v R 1991
- The defendant must be over the age of criminal responsibility — 10 years old
ELEMENTS OF THE OFFENCE: AR
• Penetration is ‘a continuing act from entry to withdrawal’ s79(2) SOA
2003 — carries the same penalty. — Objects: s2 offence, assault by
penetration, worn can be guilty of assault by penetration. There can be
rape even without ejaculation.
• The absence of V’s consent is an element of the AR — they can change
their mind.
• AR: did the victim consent?
• MR: did the D reasonably believed that V consented?
ESTABLISHING ABSENCE OF CONSENT
• In theory, the 2003 Act makes it easier to establish the offence.
• The Act has 3 separate routes by which the prosecution may seek to
establish absence of consent: (do it in order)
i. S76: conclusive presumptions (cannot be rebutted/denied)
ii. S75: evidential presumptions (rebuttable by the defence)
iii. S74: general definition of consent
CONCLUSIVE PRESUMPTIONS: s.76(1)
• In certain situations, it will be conclusively presumed that:
a) That the complainant did not consent to the relevant act, and
