The definition of rape can now be found in s. 1 of the Sexual Offences Act 2003:

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(1) a person 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.

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Actus Reus

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The actus reus of rape is committed where a man has sexual intercourse with a man or a woman without his or her's consent.

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Seuxal Intercourse

 

Sexual intercourse occurs where there is penetration by a penis of the victim’s vagina, anus or mouth. Slight penetration is all that is needed (R v Allen (Henry) (1865-72) L.R. 1 C.C.R. 367) and the offence does not require ejaculation.

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Under s.79(2) of the Sexual Offences Act 2003, sexual intercourse is treated as a contonuing act, therefore, if a victim consents to penetration but after penetration they ceased to give consent, a man would be comitting the actus reus of rape if he did not withdraw.

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It should be noted, however, that only a man can be liable for the offence of rape; the law specifies that penetration must be with a penis. However, a woman may still be an accessory to rape. In DPP v R & B [1997] 1 Cr. App. R. 36 CA, two girls, aged 14 and 11, were alleged to have imprisoned and threatened their victim before robbing her. After a boy joined the girls, they told the victim to remove her clothing and engage in sexual intercourse with the boy. They were convicted as accomplices to rape.

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The offence can be directed at either men or women. Section 79(3) provides protection to transsexuals. Where a woman forces a man to engage in sexual intercourse, this may amount to sexual assault under s.3 of the Act or under s.4 of the Act (causing another person to perform a sexual act without consent).

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The penetration must be without the consent of the other

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Consent is defined by s. 74 of the Sexual Offences Act 2003:

For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.

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Consent does not mean positive opposition on the complainant’s part. In Larte and Casleton [1995] Crim LR 75, the defendant had sexual intercourse with a 14-year-pld girl, who was asleep. He was charged with rape and argued that it had to be proved that the victim demonstrated lack of consent. However, the Court of Appeal upheld the conviction, confirming that positive dissent is not a requirement.

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Where the complainant appears to agree to sexual activity, but only out of fear, this is a mere “submission” and is not “consent” (R. v Olugboja [1982] Q.B. 320 CA)).

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The issue of whether a person has the capacity to consent when they have become voluntarily intoxicated was considered by the Court of Appeal in R. v Bree (Benjamin) [2007] EWCA Crim 804; [2008] Q.B. 131. A young man and student went out for the evening together. They had drunk heavily and then returned to the flat. Later they had sexual intercourse, but when the young man asked if she had a condom and she said ‘no’ they stopped. In court, the Crown alleged that the complainant lacked the capacity to consent to the intercourse because she had been unconscious throughout most of the sexual activity but at trial, altered its stance to maintain that, although her ability to resist B's sexual advances had been hampered by the effects of alcohol, she still had capacity to consent and that she had made clear, so far as she could, that she did not wish to have sexual intercourse. The defendant was initially convicted but his appeal was successful on the basis that the trial judges’ direction to the jury was inadequate. Subsequently it was held that drunken consent is still consent; it is a question of fact whether the particular individual had the capacity to consent in the circumstances.

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In R v Tambedou (Seedy) [2014] EWCA Crim 954, the court heard that the complainant’s evidence that she had little memory of the events was not sufficient for the judge to remove the case from the jury; the jury had to consider absent of consent and to distinguish it from the absence of memory.

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Mens Rea

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 The Sexual Offences Act 2003 requires an intentional penetration and that the defendant did not reasonably believe that the victim was consenting. This can be broken down into a two-part test. Where the answer to both of these questions is yes, the defendant will not have the mens rea:

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1. Did the defendant believe that the victim was consenting?

2. Was that belief reasonable?

 

Section 1(2) adds: "Whether a belief is reasonable is to be determined having regard to allthe circumstances, including any steps A (the alleged offender) has taken to ascertain whether B (the other person) consents".

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Following the case of R v TS (2008) the Court of Appeal seems to be interpreting this as allowing the defendant’s personal characteristics to be taken into account.

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In order to prove the absence of consent, the prosecution may proceed by one or more of the three separate routes set out in the Act. The first route would be to bring the circumstances within one of the conclusive (irrebuttable) presumptions in s.76. The second route would be to bring the circumstances within one (or more) of the rebuttable presumptions in s.75. The third route is to rely on the general definition of consent in s.74.

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The rebuttable presumptions

Section 75 of the Sexual Offences Act 2003 creates a rebuttable presumption that the complainant did not consent and the defendant had mens rea where:

● violence or the threat of violence was used against the complainant or a third person;
● the complainant was unlawfully detained;
● the complainant was asleep or otherwise unconscious when the offence was committed;
● due to a physical disability, the complainant was unable to communicate a consent; or
● the complainant had been given a substance which was capable of causing him or her
   to be stupefied or overpowered at the time of the attack.

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In these circumstances an evidential burden of proof is on the defendant.

The last scenario where the rebuttable presumption applies is concerned primarily with situations where victims have been given powerful intoxicants, particularly the drug Rohypnol, to facilitate a sexual attack. Rohypnol is a colourless, odourless, tasteless drug that can be slipped into a victim’s drink and then causes sedation or euphoria approximately 15 minutes afterwards. It is generally manufactured for the treatment of sleep disorders. People under the influence of the drug seem to be drunk, though awake and functioning, and subsequently may not remember what they had done while they were under the influence of the drug. The scope of the legislative provision could potentially include
secretly adding alcohol to a victim’s drink.

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The irrebuttable presumptions

The Sexual Offences Act 2003, s. 76 creates an irrebuttable presumption that the victim did not consent and the defendant had mens rea. This irrebuttable presumption applies where specific types of lies have been used to dupe the victim into having sexual intercourse. These lies are where:

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● (2)(a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;

● (b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.

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Prior to 2003, fraud and impersonation vitiated consent. Where the victim was deceived as to the identity of the man (husband or boyfriend), as in Elbekkay [1995] Crim LR 163, consent was said to have been vitiated. Fraud as to the nature of the act also vitiated consent prior to the 2003 Act. For example in R. v Flattery (John) (1877) 2 Q.B.D. 410, the defendant told the victim that he was performing a surgical operation, when in fact he was having sexual intercourse with her. This was a lie as to the nature of sexual intercourse.

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A narrow interpretation of s. 76 was given in the case of R. v Jheeta (Harvinder Singh) [2007] EWCA Crim 1699; [2008] 1 W.L.R. 2582 wherein it was held that where a defendant had deceived a complainant and pressured her into having sexual intercourse more frequently than she would have done otherwise, the conclusive presumption had no application as the complainant had not been deceived as to the nature or purpose of sexual intercourse. (The court did find however that the D's deceptions meant that there had been no consent under s.74).

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Sentence

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The maximum sentence for rape is life imprisonment. In practice, however,  the usual starting point is five years’ imprisonment. This can be increased where the offence had any aggravating features.

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