4.2 Rape

Question 1

Under which section of the Sexual Offences Act 2003 is the offence of rape defined?

Answer 1

Section 1.

Question 2

What is the maximum penalty for the offence of rape?

Answer 2

Life imprisonment.

Question 3

The offence of rape is triable on _____.

Answer 3

Indictment.

Question 4

What three body parts can be the subject of penetration in the offence of rape?

Answer 4

The vagina, anus, or mouth.

Question 5

According to the Sexual Offences Act 2003, rape is an offence that can only be committed via the use of the _____.

Answer 5

Penis.

Question 6

Can a woman be convicted of rape as a principal offender?

Answer 6

No, it can only be committed as a principal by a man (or person with a penis).

Question 7

Under what legal theory can a woman be convicted in relation to rape?

Answer 7

Aiding and abetting (as an accessory).

Question 8

According to s. 79(9), what specific part of the female anatomy is included in the term ‘vagina’?

Answer 8

The vulva.

Question 9

Is it necessary to prove that the hymen was ruptured to show penetration of the vagina?

Answer 9

No.

Question 10

Section 1(2) states that the reasonableness of a defendant’s belief in consent must be determined having regard to all the circumstances, including _____.

Answer 10

Any steps the defendant took to ascertain whether the complainant consented.

Question 11

In which context are more steps likely to be expected of a defendant to ascertain consent?

Answer 11

Where there is no established relationship.

Question 12

How does s. 79(2) define the duration of penetration?

Answer 12

As a continuing act from entry to withdrawal.

Question 13

True or False: Proof of ejaculation is necessary to establish the offence of rape.

Answer 13

False, it is entirely irrelevant to the offence.

Question 14

How does s. 79(3) ensure the offence of rape protects and applies to transsexual individuals?

Answer 14

It includes references to body parts that have been surgically constructed.

Question 15

How is ‘consent’ defined under s. 74 of the Sexual Offences Act 2003?

Answer 15

Agreeing by choice, while having the freedom and capacity to make that choice.

Question 16

Any consent given must be ‘true’ consent, not simply a _____ induced by fear or fraud.

Answer 16

Submission.

Question 17

Which case involved a police officer using threats to take children away to negate ‘true’ consent?

Answer 17

R v Stephen Mitchell.

Question 18

According to R v Howard (1965), when does a complainant lack the ‘capacity’ to agree by choice?

Answer 18

When their understanding and knowledge are so limited they cannot decide whether to agree.

Question 19

If consent is withdrawn during the act, at what point does continued penetration become a sexual offence?

Answer 19

Immediately upon the withdrawal of consent.

Question 20

What was the general ruling in R v B [2006] regarding HIV status and consent?

Answer 20

Non-disclosure of HIV status does not generally vitiate consent to sexual intercourse.

Question 21

Under what condition might HIV status vitiate consent according to R v McNally [2013]?

Answer 21

If the complainant had been positively assured that the accused was not HIV-positive.

Question 22

If an HIV-positive person makes no mention of their condition, under which Act might they be charged?

Answer 22

Offences Against the Person Act 1861 (s. 18 or s. 20).

Question 23

In Assange v Sweden [2011], the court held that consent is negated if a complainant makes it clear they only consent if the defendant uses a _____.

Answer 23

Condom.

Question 24

In R (F) v DPP [2013], why was consent negated regarding the defendant’s ejaculation?

Answer 24

The defendant deliberately ejaculated inside the victim despite agreeing to withdraw beforehand.

Question 25

In McNally v R [2013], the court determined that deception as to _____ can vitiate consent.

Answer 25

Gender.

Question 26

Does a lie about one's wealth generally vitiate consent in the context of sexual offences?

Answer 26

No.

Question 27

What was the ruling in R v Lawrence [2020] regarding a lie about a vasectomy?

Answer 27

A lie about fertility is not capable in law of negating consent.

Question 28

Why did the lie in R v Lawrence [2020] fail to negate consent?

Answer 28

It related to the risks/consequences of the act rather than the physical performance of the act.

Question 29

Which four offences are covered by the presumptions in Sections 75 and 76?

Answer 29

Rape, assault by penetration, sexual assault, and causing sexual activity without consent.

Question 30

Under s. 75, if the prosecution proves specific circumstances and the defendant's knowledge of them, what is the resulting presumption?

Answer 30

The complainant did not consent and the defendant did not reasonably believe they consented.

Question 31

What is the legal effect of a s. 75 presumption if the defendant adduces 'sufficient evidence' to the contrary?

Answer 31

It becomes a matter for the jury to decide (it is a rebuttable evidential presumption).

Question 32

According to s. 75(2)(a), a presumption of no consent arises if violence or _____ was used against the complainant.

Answer 32

The fear of immediate violence.

Question 33

Does s. 75 apply if violence is threatened against a person other than the complainant?

Answer 33

Yes, under s. 75(2)(b).

Question 34

What circumstance regarding the complainant's location creates a presumption under s. 75(2)(c)?

Answer 34

The complainant was unlawfully detained (and the defendant was not).

Question 35

Under s. 75(2)(d), a presumption arises if the complainant was _____ or otherwise unconscious.

Answer 35

Asleep.

Question 36

Why does a physical disability trigger a s. 75 presumption?

Answer 36

If it prevents the complainant from communicating whether they consent.

Question 37

Under s. 75(2)(f), what must a substance do to a complainant to trigger a presumption of no consent?

Answer 37

Stupefy or overpower them.

Question 38

If a situation (like a threat to take away children) is not listed in s. 75(2), does it mean consent existed?

Answer 38

No; it only means a statutory presumption cannot be used, but consent can still be absent under s. 74.

Question 39

Section 76 deals with _____ presumptions about consent.

Answer 39

Conclusive.

Question 40

Under s. 76, if the specified circumstances are proved, can the defendant argue that they believed there was consent?

Answer 40

No, the presumption is conclusive.

Question 41

What are the two circumstances specified in s. 76(2) that lead to a conclusive presumption?

Answer 41

Deception as to nature/purpose of the act or impersonating a person known personally to the victim.

Question 42

In R v Bingham [2013], why did s. 76 not apply to the defendant's online pseudonymity?

Answer 42

There was no deception as to the 'purpose' (sexual gratification) and the person impersonated was unknown.

Question 43

In R v Devonald [2008], 'purpose' was given a wide meaning to include what motive?

Answer 43

Teaching the victim a lesson (rather than just sexual gratification).

Question 44

Does s. 76 apply if a defendant deceives a complainant into having sex more frequently than they otherwise would (R v Jheeta)?

Answer 44

No, as there is no deception as to the nature or purpose of the intercourse.

Question 45

Would a false promise to marry in exchange for sex be covered by the conclusive presumptions of s. 76?

Answer 45

No.

Question 46

Would a false promise to pay for sexual intercourse fall under the s. 76 conclusive presumptions?

Answer 46

No.

Question 47

In the s. 1 definition of rape, who is 'Person A' and who is 'Person B'?

Answer 47

A is the defendant (perpetrator) and B is the victim (complainant).

Question 48

Under s. 1(1)(a), the penetration must be _____.

Answer 48

Intentional.

Question 49

What common law principle regarding the 'freedom' to choose was emphasized in R (F) v DPP?

Answer 49

It must be approached in a 'broad common-sense way'.