Rape

• Defined in Sexual offences Act 2003 s1
• Gendered offence
• R v R [1991] 4 ALL ER 481
• 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 penetration, and
  • A does not reasonably believe that B consents
• 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
• AR: Penetration of the vagina, anus, or mouth of another person (B) with his penis and the victim doesn't consent to the penetration
• Sexual Offences Act 2003 s7992): Penetration is a continuing act
• R v Kaitamaki [1985] AC 147
• 2003 Act extended to oral penetration : Ismail (2005) EWCA Crim 397
• S 79(3) includes surgically reconstructed body parts to extend to transgender people, for both penis and vagnia
• consent must be a continuing act, if at any point they no longer consent and the act continues then it becomes rape.
• Consent: s74 - General consent, s75 - Evidential presumptions, s76 - Conclusive presumptions
• s76(2)(a) - nature or purpose of the act. Requires; Must be deception, deception must be intentional, deception must relate to either the nature or purpose
• Nature: Flattery (1877) 2 QBD 410 - thought to be surgical procedure but was sexual intercourse

  R v Williams [1923] 1 KB 340 - 16 year old and vocal coach
• Purpose

  R v Jheeta [2007] EWCA Crim 1699 -  In the end she couldn't benefit from this section, this section is very narrow (look into)

  Devonald [2008] EWCA Crim 527
• s76(2)(b) - person's identity. Requires; Deception must be intentional, victim must have believed that other person was someone else
• R v Chicray - check, situation of sleep and rape
• s76(2)(b) - impersonation. Elebekkay [1995] Crim L R 163 - needs to be someone they know personally

  Of a person know personally

  Applies even if the victim is not taken in by the impersonation
• Evidential Presumptions: s75 SOA 2003

  May be rebutted if evidence if sufficient evidence is adduced to raise the issue - can be rebutted
• either s76(2)(a) or s76(2)(b) need to be present, both don't need to be present for the presumption
• General Consent: s74 SOA 2003
• General consent is when there has been an initial act of penetration with consent but then at some point during sexual activity the defendant does something which causes the complainant to withdraw their consent.
• R v Olugboja (1982) QB 320 - Submission does not mean consent
• R v Bree [2007] EWCA Crim 256 - if V has lost capacity to choose then the presumption there was no consent but in situation where  they can still retain capacity then it amount to consent - Drunken consent can still amount to consent
• R v Dica & Goswell [2007] UKHL 35 - If V is asleep or unconscious due to drink/drugs then there is no consent as they are unable to make choices
• It's now up to the jury to acknowledge whether there was enough capacity to consent or not
• Dougal (unreported) Swansea Crown Court 2005 - she just couldn't remember if she had or hadn't given consent, so they had to drop the case because of her lack of knowledge
• Deception which does not fall under s76 can be considered under s74

  R v McNally [2013] EWCA Crim 1051
• The complainant has given consent on basis of a condition that has not been complied with: Assange v Swedish Prosecution Authority [2011] and R (F) v DPP [2013] EWHC 945
• Mens Rea of Rape: Intention to penetrate the Vagina, anus or mouth with their penis. D does not reasonably believe that the V consented to the pentration
• Actus reus of Rape: Penetration of vagina, anus or mouth by penetrator's penis without consent