RAPE

Sec 1 Sexual Offences Act 2003

Rape has been defined in Sec 1 of the Sexual Offences Act 2003. A person commits
rape if he intentionally penetrates any one of the orifices without V’s consent and the D
does not reasonably believe that the V is consenting. This is punishable by a maximum
of life imprisonment.
Intercourse + consent = lawful intercourse.
Intercourse – consent = rape.
Rape is a gender specific crime as it can be only committed by a man, a woman cannot
rape someone.
ACTUS REUS MENS REA
1. Defendant must be a male. 1. Intentional penetration.
2. There must be ‘penile penetration’ 2. D does not reasonably believe that
3. Relevant orifice i.e. V is consenting.
Vagina, or,
Anus, or,
Mouth.
4. Victim does not consent.

ACTUS REUS;
1. MALE DEFENDANT;
Rape can only be committed by a man due to the requirement of penile penetration
(R v. R). This is what makes rape a gender specific offence.
However, the victim can either be a male or female.
2. PENILE PENETRATION;
Sec 79(2) of Sexual Offences Act 2003, states ‘penetration is a continuing act from
entry to withdrawal’
Kaitamaki; man who continues to have intercourse after consent is withdrawn
commits the actus reus of rape.
3. RELEVANT ORIFICE;
Orifice means opening. It includes vagina, anus or mouth. R v. Ismail tells us that
‘no orifice is more serious than another’.
 4. CONSENT;
Consent is one of the most important aspects in relation to the offence of rape. In most
cases of rape the main problem for the prosecution is proving absence of consent. The
problem has been described as linked with the ‘infinite circumstances of human
behaviour, usually taking place in private without independent evidence, and the
consequent difficulties of proving this very serious offence’ (Bree [2007] per Hallett J at
[36]). This places too much burden on prosecution to prove guilt beyond reasonable
doubt.
However, in order to ease the burden of proof on the prosecution, the government has
now introduced some presumptions. The effect of these is that, where these apply,
there will rarely be any need for the Victim to be cross-examined on the question of
consent. It will be presumed that V did not consent.

1. CONCLUSIVE PRESUMPTIONS; (SEC 76 SOA 2003)

Conclusive presumptions are non rebuttable. (if any one of these is present then it will
be presumed that V consented) These include;

Sec 76(2)(a); V’s consent was vitiated by fraud as to the nature and quality of the act.
The D intentionally deceived the V as to the nature and purpose of the act.
R v. Williams; D was a singing teacher who convinced V (a 16-year-old student) to let
him do something to improve her singing voice. He was in fact having sexual
intercourse with her. D was charged with rape. Although V had consented, this was
negated by fraud as to the purpose and nature of the act and D was thus held liable.
Here, V was deceived as to the purpose (improving V’s voice) and nature (V did not
know what intercourse was) of the act.
R v. Linekar; the defendant agreed to pay for sexual intercourse with a prostitute but
afterward refused to pay. Courts held that that here the V was deceived as to the
purpose (financial purpose) but not the nature of the act (she did know what an
intercourse was and what she was doing).
R v McNally (2013): D deceived V as to her gender, pretending to be male thereby
persuading V to become sexually acquainted with her. The Court of Appeal held that
there had been no deception as to the nature (intercourse) or purpose (pleasure) of the
Act.
 R v. Jheeta.
 R v. Piper.
 Green.
Section 76(2)(b): D impersonated a person known personally to the victim.
R v. Elbekkay; The appellant had been out for the evening drinking with the victim and her
boyfriend. They returned to the victim’s flat and the victim retired to bed whilst the appellant and
the victim’s boyfriend continued to drink. Later that evening the appellant climbed into the
victim’s bed. Believing the appellant to be her boyfriend the victim said, “I love you”. The
appellant then began to have intercourse with the victim. Soon after the victim realised her error
and fought the appellant off, cutting him with a knife. The appellant was convicted of rape and
appealed on the basis that the victim had consented to intercourse. But the conclusive
presumption in S 76(2)(b) was applicable here an V thought it was her boyfriend that she was
having intercourse with. Thus, the courts presumed that V did not consent.

2. EVIDENTIAL PRESUMPTIONS; (SEC 75 SOA 2003).

These presumptions are rebuttable which means that if any one of these is successful
and it is presumed that the V did not consent, D will be given a chance to present any
evidence proving otherwise.
These include;
S 75(2)(a); V had a fear of violence against herself/himself that’s why she/he had to
agree on having an intercourse, OR
S 75(2)(b); V had a fear of violence against another, OR
S 75(2)(c); V was unlawfully detained. OR
S 75(2)(d); V was asleep or otherwise unconscious, OR
S 75(2)(e); V was physically disable due to which she/he was unable to communicate,
OR
S 75(2)(f); V was administered to a substance which caused D to be overpowered.
In R v. Lewis MBA the accused had inflicted upon the victim such violence as clearly
negated any question of consent on her part, or reasonable belief in her consent on his
part.

3. STATUTORY DEFINITION OF CONSENT; (SEC 74 SOA 2003)

Sec 74 states that a person consents if he/she agrees by choice and has the freedom
and capacity to make that choice.
Olugboja [1982]; Dunn LJ: “the dividing line ... between real consent on the one hand
and mere submission on the other may not be easy to draw. Where it is to be drawn in a
given case is for the jury to decide, applying their combined good sense, experience
and knowledge of human nature and modern behaviour to all the relevant facts of that
case.”
Reluctant acquiescence amounts to consent; submission does not. The distinction is not
always easy to draw. (in consent you have the freedom to make a choice while in
submission you may not).
Doyle [2010]; Pitchford LJ: there are circumstances in which the jury may well require
assistance as to the disctinction to be drawn between free exercise of choice on the
one hand, especially in the context of a long term and loving relationship, and unwilling
submission to demand in fear of more adverse consequences from refusal on the other.
Kirk [2008]: Approved the distinction drawn by the trial judge between consent and
‘mere submission’. In this case COA upheld the conviction of D who had make sexual
intercourse the condition of a gift of money needed by the young homeless V to buy
food. Courts held that V submitted rather than consenting because she had NO
CHOICE. It was sex or hunger.
 R v. Ali and Ashraf;
 R v. W

If A has intercourse with B concealing from her that he is HIV positive, does he commit
the actus reus of rape, given that consent would not have been granted had B known of
his condition?
The presumptions do not apply – A does not deceive B as to the nature or purpose of
the act. Guilt depends therefore on whether consent is vitiated (s 74).
B [2006]: the Court of Appeal ruled that it was not vitiated for the purpose of the offence
of rape but it was for the purpose of s.20. The transmitter of the disease would therefore
be guilty under s.20.

Assange v Sweden (2011): Conditional consent by V (for sexual intercourse on the

condition that D used a condom) is a matter to be dealt with under section 74, not
section 76 (deception as to the ‘nature of the act’).
The woman was held not to have consented to the intercourse when he failed to wear
one.
R (on the application of F) v DPP [2013]: a similar decision was reached when the
condition was that the man should wear a condom or otherwise not ejaculate.
R (Monica) v DPP (Boyling, interested party) [2018]: It was held that a deception,
without other vitiating factors such as oppressive behaviour, only vitiates consent when
it can be brought within s.76 and not S 74.
D CC v LS (2010): A person with a mental disorder might lack capacity to consent to
sexual relations either generally because they do not understand what sex is or in the
particular circumstances of the case.
INTOXICATION AND CONSENT UNDER S 74
 if the Victim has been involuntarily intoxicated by the D then the V may opt for
s.75(2)(f) – evidential presumption to prove that she/he did not consent and the D
did not reasonably believe the V to consent.
 But, if V’s intoxication was voluntary some factors must be taken into consideration.
Kamki (2013): “…you will need to consider the evidence carefully… as to what was
M’s state of consciousness or unconsciousness at the time of penetration, and
decide firstly was she in a condition in which she was capable of making a choice
one way or the other. If you are sure that she was not, then she was obviously not
consenting.”
 So we need to look at 2 things i.e. whether 1. V was unconscious due to which she
was not in a capacity to make a choice and was unable to communicate which
means that she lacked free choice.
 Bree [2007]: The fact of intoxication may affect both a person’s capacity to consent
and their freedom of choice. It may also disinhibit, which is perfectly consistent with
consent.
 Dougal (2005): ‘a drunken consent is still consent’

MENS REA
The D must have performed intentional penetration and must not reasonably believe
that V was consenting.
Previously, at common law, prosecution was required to proof that D lacked an ‘honest
belief’ that V was consenting. However, this was proving to be unfair as the D could
escape liability if his honest belief was not based on reasonable grounds.(DPP V.
Morgan).
Now, under Sec 1(c) Sexual Offences Act 2003, honest belief is not enough it must be
reasonable and this will be decided by the jury keeping in mind all the evidence.
Ciccarelli (2011): The trial judge is entitled to withdraw the question as to whether D’s
belief was reasonable if there was insufficient evidence It was emphasized that the
defendant, to rebut the presumption of mens rea, had to introduce evidence that he
reasonably believed the victim consented. It was not enough just to say he did so
believe.
R v. Braham;