Rape

• actus reus of rape:

  • penile penetration of the victim’s vagina, anus or mouth
  • without consent
• mens rea of rape:

  • intention to penetrate
  • lack of reasonable belief in consent
• The law does not require that lack of consent should be communicated or demonstrated to the defendant -> Hysa
• s76: conclusive presumption

  • there can be no consent and no belief in consent
• s75: evidential presumption

  • the defence has to prove that there was consent and/or belief in consent
• s74: general definition

  • the prosecution has to prove that there was no consent and/or no belief in consent
• s76

  • applies in situations where consent was gained by deception
• s75

  • applies in six situations where the victim may have been given consent but the law considers it may not be valid
• deception to the nature of the act: s76(1)(a)

  • defendant has deceived the victim so that she believes what she is doing is something other than intercourse
  • Williams
• deception to the purpose of the act: s76(1)(a)

  • defendant has deceived the victim so that she is misled about why she is performing a sexual act
  • Devonald
• deception to the identity of the defendant s76(1)(b):

  • defendant has deceived the victim so that she is misled about the person with whom she is having sexual activity. Must be deception as to who the person is rather than some other sort of characteristic.
• s75 situations:

  • v was subject to/in fear of violence
  • violence was used or threatened against any other person
  • v was unlawfully detained at the time
  • v was asleep or unconscious
  • v was not able to communicate due to physical disability
  • substance administered to v which stupefied them
• drunken consent is still consent

  • Bree
• actus reus of assault by penetration (s2):

  • penetration of the vagina or anus of v with a part of the d's body or anything else
  • must be sexual in nature
  • absence of consent
• mens rea of assault by penetration (s2):

  • intention to penetrate
  • lack of reasonable belief in consent
• actus reus of sexual assault (s3):

  • touching
  • which is sexual in nature
  • absence of consent
• mens rea of sexual assault (s3):

  • intention to touch
  • lack of reasonable belief in consent