Rape

• Rape


  s.1(1) Sexual Offences Act 2003: D intentionally penetrates the vagina, anus or mouth of C with his penis without C's consent and where D does not reasonably believe C has consents
• Actus Reus of Rape

  • Requires a positive act - cannot occur through omission
  • Slightest penetration suffices to constitute rape
  • Ejaculation is not required
• Penetration with penis


  • Under traditional definition, woman cannot commit rape
  • Includes gender reconstruction allows: woman to man
• Vaginal penetration


  • Absence of hymen tearing does not nullify act of penetration
  • In cases where C is a virgin it can provide evidence of penetration
  • Definition also includes the vulva
• Mouth penetration


  Oral penetration previously considered an assault, but now within the scope of s.1(a) SOA
• Anal penetration


  Anal penetration is within the scope of rape
• Consent


  • C consents if C agrees by choice and has the freedom and capacity to make that choice
  • Choice - C is aware of what is happening and who is doing it
  • Capacity - Ability to understand and communicate the nature and consequence of decision (includes age of consent and mental capacity)
  • Freedom - C was not forced or submission
• Penetration is a continuing act


  Where C changes mind and D does not withdraw = lack of consent
• Common law exemption for marital rape no longer applies; husband can be guilty of raping their wife
• C does not need to be hostile to show consent - absence of consent does not have to be communicated
• Conclusive Presumption (Irrebuttable)


  • Circumstances where C did not consent/ D did not believe that C consented to the relevant act (Lack of consent)
  • Circumstance 1 - s.76(2)(a) SOA 2003: D intentionally deceived C as to the nature or purpose of the act
• Deception as to the nature of the act

  • R v Williams - D (singing teacher) persuaded C into believing that sexual intercourse would 'help' improve her breathing technique
  • R v Flattery - D deceived C with learning difficulties that he was performing surgery on her through sexual intercourse
• Contrast case: R v Linekar - no deception as to the nature of the act because sex worker consented to sexual intercourse even though she had been deceived as the fact that she would be paid for her service
• Deception as to the purpose of the act

  D deceives C who thinks that D's purpose is something other than sexual gratification
• Deception as to the purpose of the act

  • D says to procreate rather than for sexual gratification
  • C knows what sexual intercourse but is deceived by cult leader if she does not have sex she will give up her soul
• Deception as to the purpose of the act

  • R v Devonald - teenage boy (V) masturbated in front of webcam upon request from D (person he thought to be a young woman) but in fact, it was his ex-gf father to embarrass him
  • R v Tabassum - D deceived C's that he worked for a hospital and claimed to be compelling a database on breast cancer
• Contrast case: R v Jhetta - CA held that just because the victim was deceived in some way by D's lies, it does not lead to a conclusive presumption that C was not consenting
• Circumstance 2 - s.76(2)(b)

  D intentionally induced C to consent to the relevant act by impersonating a person known to C
• Impersonation


  • R v Elbekkay - D impersonated C's bf whilst C believing to be her bf whilst having intercourse
  • R v Hepburn - D professional cricketer had been drinking with C who was in a relationship with D's flatmate and performed oral sex - No internal impersonation
• Contrast case: R v Richardson - Held this was not a deception as to identity but to qualification
• Deception as to qualification

  • Melin - D represented that he was medically qualified to give botox injection when he was not
  • R v Tabassum - where D doctor conducts examination of a woman incorrectly stating that he is qualified
• Evidential Presumption (Rebuttable) s.75(1) SOA 2003


  Lack of consent is presumed/where D did not reasonably believe that C consented but Lack of evidence is rebutted by evidence
• s.75(2)(a)


  Any person at the time of the penetration or immediately before it, used violence against C or caused C to fear the immediate use of violence
• s.75(2)(a)


  • R v Dagnall - D grabbed C with the intention of raping her and forced her against the fence saying he could do what he wanted as long he did not her hurt
• s.75(2)(b)


  Any person at the time of penetration or immediately before it caused C to fear that violence was being used or immediately used on another person
• s.75(2)(c)


  C was unlawfully detained at the time of the penetration
• s.75(2)(c)


  • David T - C's ex partner kidnapped C and sexually assaulted her
• s.75(2)(d)


  C was asleep or otherwise unconscious at the time of the penetration
• s.75(2)(d)


  • Hepburn - Held lack of consent to oral sex as C had been asleep
  • Larter & Castleton - D charged with rape for having sexual intercourse with C (14) who was sleep
• Contrast case: Blacklock - C went to sleep after consuming alcohol and D later entered the bedroom penetrating with his fingers
• Contrast case: Cicarrarelli - CA rejected as rebutting evidence a sexual advance C had made to D earlier in the evening
• s.75(2)(f)


  Any person has administered or caused to be taken by C without C's consent a substance which, having regard to when it was administered or taken, was capable of causing or enabling C to be stupefied or overpowered at the time of the penetration
• s.75(2)(f)


  • Reynhard Sinaga - Used drink laced with GHB to make his victims unconscious before attacking them
• Contrast case: Abbess - if C is stupification from the substance is purely voluntary and fully informed the presumption does not apply
• Dougal case


  Judges held that a drunken consent was still consent
• Bree case


  Court criticised Dougal and held that consent given while drunk still counted as consent, but their capacity to consent might vanish even before a person becomes unconscious due to alcohol
• Orlando and Costanzo case

  Defendants jailed for 7 years 1/2 for raping woman at nightclub where CCTV footage showed complainant visibly drunk
• Deception regarding use of condom - Assange : While it might not be deception about the nature or purpose of the act, it can still invalidate consent according to section 74 of the law
• Deception regarding withdrawal/ejaculation


  R (on the application of F) v DPP : By failing to adhere to the agreed-upon method of contraception, the defendant deprived the complainant of the choice they had agreed upon, so the complainant's consent was deemed invalid
• Deception regarding biological sex

  Mcnally : The defendant's active deception, by pretending to be a boy, fundamentally altered the nature of the relationship, so the complainant's consent was invalid as they did not consent to sexual encounters with a girl