RAPE
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 punishment of abusers and ensure that the law is fair and non-
discriminatory’. Home Office Press Release.
Non-consensual offences:
S1: Rape (penile penetration)
S2: Assault by penetration (any form of penetration)
S3: Sexual assault (unwanted sexual touching)
S4: Causing sexual activity without consent (coercion of someone into the
sexual act, deception)
SOA 2003, s1: Rape
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.
Key statute: Sexual Offences Act 2003 (SOA 2003)
Offences within SOA are notable for use of wide actus reus elements, and objective
mens rea requirements.
Elements of rape:
SOA 2003, s1
Actus Reus Mens Rea
Conduct element Penile penetration of V’s Intention
vagina, anus or mouth
Circumstance element V does not consent D lacks a reasonable belief in
consent
Result element none none
, ACTUS REUS FOR RAPE:
D penetrated the vagina, anus, or mouth of V with his (1) penis, and without V’s (2)
consent.
(1) penis - rape can only be committed as a principal offender by a man
CONDUCT crime: penetration in circumstances where one does not have consent
CONDUCT element: Penetration
- S. 79(2) SOA 2003: Penetration is a continuing act from entry to withdrawal.
- R v. Kaitamaki [1985] AC 147.
- R v. Leaver [2006] EWCA Crim 2988. (confirming under new law)
- S. 79(9) SOA 2003: ‘Vagina’ includes the vulva.
- R v. F [2002] EWCA Crim 2936.
- Inclusion of mouth and anus in AR of rape
- 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).
CIRCUMSTANCE element: V’s non-consent
(2) consent - To analyse whether B lacked consent, our focus is on the
subjective mind of B.
- was B a willing participant to the sexual contact?
- did B freely agree to penetration?
Three possible routes to determine V’s non-consent under SOA 2003:
- CONCLUSIVE presumptions about non-consent (s. 76 SOA 2003); (if
present, it will be conclusively presumed that victim did not consent)
- EVIDENTIAL/REBUTTABLE presumptions about non-consent (s. 75 SOA
2003); and, (defendant is able to argue there is still consent despite the
existence of circumstances)
- A GENERAL definition of consent (s. 74 SOA 2003) (final section)
STATUTE
The definition of consent within the SOA 2003 is spread across three sections:
- Section 76: A set of ‘conclusive presumptions’ of non-consent: sets of facts
which, if proved, will be enough to establish non-consent.
- Section 75: A set of ‘evidential presumptions’ of non-consent: sets of facts
which, if proved, require A to provide some counter evidence to prevent a
finding of non-consent.
- Section 74: A general definition of consent.
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 punishment of abusers and ensure that the law is fair and non-
discriminatory’. Home Office Press Release.
Non-consensual offences:
S1: Rape (penile penetration)
S2: Assault by penetration (any form of penetration)
S3: Sexual assault (unwanted sexual touching)
S4: Causing sexual activity without consent (coercion of someone into the
sexual act, deception)
SOA 2003, s1: Rape
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.
Key statute: Sexual Offences Act 2003 (SOA 2003)
Offences within SOA are notable for use of wide actus reus elements, and objective
mens rea requirements.
Elements of rape:
SOA 2003, s1
Actus Reus Mens Rea
Conduct element Penile penetration of V’s Intention
vagina, anus or mouth
Circumstance element V does not consent D lacks a reasonable belief in
consent
Result element none none
, ACTUS REUS FOR RAPE:
D penetrated the vagina, anus, or mouth of V with his (1) penis, and without V’s (2)
consent.
(1) penis - rape can only be committed as a principal offender by a man
CONDUCT crime: penetration in circumstances where one does not have consent
CONDUCT element: Penetration
- S. 79(2) SOA 2003: Penetration is a continuing act from entry to withdrawal.
- R v. Kaitamaki [1985] AC 147.
- R v. Leaver [2006] EWCA Crim 2988. (confirming under new law)
- S. 79(9) SOA 2003: ‘Vagina’ includes the vulva.
- R v. F [2002] EWCA Crim 2936.
- Inclusion of mouth and anus in AR of rape
- 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).
CIRCUMSTANCE element: V’s non-consent
(2) consent - To analyse whether B lacked consent, our focus is on the
subjective mind of B.
- was B a willing participant to the sexual contact?
- did B freely agree to penetration?
Three possible routes to determine V’s non-consent under SOA 2003:
- CONCLUSIVE presumptions about non-consent (s. 76 SOA 2003); (if
present, it will be conclusively presumed that victim did not consent)
- EVIDENTIAL/REBUTTABLE presumptions about non-consent (s. 75 SOA
2003); and, (defendant is able to argue there is still consent despite the
existence of circumstances)
- A GENERAL definition of consent (s. 74 SOA 2003) (final section)
STATUTE
The definition of consent within the SOA 2003 is spread across three sections:
- Section 76: A set of ‘conclusive presumptions’ of non-consent: sets of facts
which, if proved, will be enough to establish non-consent.
- Section 75: A set of ‘evidential presumptions’ of non-consent: sets of facts
which, if proved, require A to provide some counter evidence to prevent a
finding of non-consent.
- Section 74: A general definition of consent.
