Chapter 13: Sexual Offences - Rape

Question 1

What is the origin for sexual offences? What is the Act for this

Answer 1

All the offences under sexual offences are statutory based under the - Sexual Offences Act 2003

Mainly focused on 2 sections
* Section 1 SOA 2003 - rape
* Section 2 SOA 2003 - assault by penetration

Question 2

What was the Act replaced by the current Sexual Offences Act 2003?

Answer 2

Part 1 of the SOA 2003 makes many changes to the sexual crime laws in England & Wales

• Almost completely replacing the Sexual Offences Act 1956

Question 3

What are the 4 overviewing points for the offence of rape?

Answer 3

1. An indictable offence
2. Max - life imprisonment
3. Basic intent crime
4. Drunkenness is not a defence

Question 4

What is the authority that gave the definition of rape?

Answer 4

“The Wrongness of Rape” - Oxford Essay in Jurisprudence [2000]

• “Rape, in the pure case, is the sheer use of a person… Rape is humiliating even when unaccompanied by further affronts because the sheer use of a person, and in that sense the objection of a person, is a denial of their personhood. It is literally dehumanising…”

Question 5

Do all rapes involve violence?

Answer 5

Not all rapes are accompanied by violence

Rape is a crime against sexual autonomy. What matters most is consent

Question 6

What is the Act that governs the law of Rape?

What are the 4 elements of Rape?

Answer 6

Section 1 Sexual Offences Act 2003

1) A person (A) commits an offence if:

• a) he intentionally penetrates the vagina, anus or mouth of another person (B) with the penis;
• b) B does not consent to the penetration; and
• c) A does not reasonably believe B consents

2) Whether a belief is reasonable is to be determined having regards to all the circumstances, including any steps A has taken to ascertain whether B consents

intentionally (MR)
penetrates (AR),
(b) AR,
(c) MR

Question 7

What is Penile Penetration?

1st element (AR)

Answer 7

Penetration is not defined in the Act, but Section 79(2) provides that penetration is a continuous act

Question 8

What is the case for penile penetration?

1st element

Answer 8

R v B [2006]

Facts

• D convictedd of rape by forcing V to perform oral sex

Question 9

What are the 2 cases stating that penetration is a continuous act?

Answer 9

Kaitamaki [1985]

Cooper and Schaub [1994]

Question 10

Kaitamaki [1985]

Contionous act

Answer 10

Facts

1. D thought V consented but then later knew that she was not consenting
2. Continued to have sexual intercourse

Held

1. Convicted of rape

Question 11

Cooper and Schaub [1994]

Continuous act

Answer 11

Held

• Penetration and therefore, rape could also occur where there is failure to withdraw (Section 78)
• Penetration is a continuing act from entry to withdrawal

Question 12

What is the second element ‘V did not consent’?

2nd element (AR)

Answer 12

The critical element for rape is consent, without it, penetration is merely not criminal

Consent is the explicit expression of intimacy

Question 13

What is intention to penetrate?

3rd element (MR)

Answer 13

2 types

• Direct intent
• Oblique intent

Question 14

What is the case for intention to penetrate?

3rd element

Answer 14

R v Gabbai [2019]

Question 15

R v Gabbai [2019]

intention to penetrate

Answer 15

Issue

• Prosecution must prove that there was 1) no consent to penetration and that penetration was 2) intentional

Facts

1. D penetrated the V’s anus without consent

Takeaway

• This shows that the prosecution not only has to prove consent
• But also intention to penetrate

Note

• D could have penetrated the wrong part on accident
• Could be intoxicated (no intention)

Question 16

What is ‘D did not reasonably believe that V was consenting’

4th element (MR)

Answer 16

Whether the jury (reasonable person) would believe, in such circumstances that the V was consenting to penetration (objective test)

• To consider D’s personal characteristics and beliefs

Question 17

What is the provision that determines reasonable belief?

What are the 3 circumstances to consider?

4th element

Answer 17

Section 1(2) - determining reasonable belief

• Having regarded all the circumstances including the steps taken

3 circumstances to consider

1. D does not always have to ask V directly for consent (“do you consent?”)
2. If D has taken steps to ascertain if V consents
3. Characteristics - age, mental capacity, previous relationships, sexual experience, other characteristics which may affect D’s ability to understand the nature of V’s behaviour

Question 18

What is the case for ‘D did not reasonably believe that V was consenting’

4th element

Answer 18

R v B [2013]

Question 19

R v B [2013]

did not reasonably believe

Answer 19

Issue

• COA had to consider whether D reasonably believed that the V was consenting

Facts

1. Forced V to have oral sex
2. out that the D had mental illness
3. Her was delusional that he was a healer with special powers
4. He believed he was obliged to have intercourse with his partner

Held

1. But COA felt that, the evidence more then so, showed that his view does not show that he believed that the V was in fact consenting to sexual intercourse

Takeaway

• NOT looking at what D believed
• But the reasonable person’s point of view

Question 20

What are the 3 provisions for presumptions for lack of reasonable belief?

Answer 20

Section 76
Section 75
Section 74

when going through presumptions, start with the most hardest to prove (section 76 > section 74)

Question 21

What is Section 76 presumption of lack of reasonable belief?

Answer 21

1) Conclusively presumed that -

• a) V did not consent to the relevant act, and
• b) That the D did not believe that the V consented to the relevant act

2) In circumstances that -

• a) D intentionally deceived the V as to nature or purpose of the act
• b) D intentionally induced V to consent, impersonating a person known personally to the V

Question 22

What are the 6 lists of rebuttable presumptions under Section 75 presumption of lack of reasonable belief?

Answer 22

1) If sexual intercourse is engaged in these circumstances, and D knows. It is presumed that there is no consent

1. Using violence or causing complainant to fear immediate violence against the complainant
2. Causing complainant to fear the violence was used or would be immediately used against another person
3. Complainant was unlawfully detained
4. Complainant was asleep
5. Complainant has physical disability which made him/her unable to communicate consent
6. Someone caused the complainant, without complainant’s consent, to take a substance which is capable or can or enabling the complainant to be stupefied or overpowered

Question 23

What is Section 74 presumption of lack of reasonable belief?

Answer 23

Introduction

• “A person consents if he agrees by choice, and has the freedom and capacity to make that choice.”
• To distinguish - between choice and submission

Submission

• When the freedom and choice is taken away from the V - then there is no consent

Example

• If a wife merely consents reluctantly to a husband demanding sex, it is still consent regardless
• Or out of a sense of duty to her partner

Question 24

What are the 2 types of presumptions for lack of reasonable belief?

What are the respective provisions under each?

Answer 24

Conclusive presumption (can’t argue) - when D deceived the V of his identity or his act

• Section 76 of the SOA 2003

Rebuttable presumption - absent of consent is presumed (no reasonable belief) in the absence of evidence to the contrary

• Section 75
• Section 74

Question 25

What are 8 cases for **Section 76 SOA 2003**?

Answer 25

1) **Williams (1923)** * Rape (deceived) * D had sex due to the fact she wanted to **improve her singing voic**e (deveived for the purpose of the act) 2) **Tabassum (2000)** * Rape (deceived) * The 3 Ds had sex as they thought it was for **medical purposes** (deceived as to the quality) 3) **R v Linekar (1995)** * No rape (sexual in nature) * C (prostitute) **knew** what the nature of sex was for sexual gratification 4) **Jheeta [2007]** * No Rape (sexual in nature) * C **knew** the purpose of the act was to have sex with the D even though she was threatened imprisonment 5) **Elbekkay (1995)** * Deceiving identity (**Section 76(2)(b)**) * The V **could not have consented** as she thought D was her BF (actually twins) 6) **R (Monica) v DPP** * No rape * C had sex with an undercover police, **knowing** the nature of the act 7) **Assange v Swedish Prosecution Authority (2011)** * Rape (vitiated consent) * The fact that V told D to wear a condom or she would not ha ve sex was a **fundamental consenting factor** to the sexual act 8) **EB (2006)** * No rape * D's HIV status would vitiate consent to physical contact, but not to the sexual intercourse specifically

Question 26

What are the 2 cases for **Section 75** SOA 2003

Answer 26

**R v Ciccarelli (2012)** * Circumstance D - complainant was asleep **R v Kamki (2013)** * Circumstance F - substance was given which may stupify or overpower the complainant

Question 27

**R v Ciccarelli (2012)** ## Footnote Section 75 SOA 2003

Answer 27

Facts 1. A person had sex with complainant who is asleep at the time Note 1. It is **presumed** that there is no consent 2. However, can be **rebutted** if D provides sufficient evidence 3. If there is enough evidence that shows there is no way to find reasonable belief - the question can be **withdrawn from the jury** **Lord Judge CJ** * The general burden of proof is on the prosecution, but the defendant had to adduce some evidence ‘beyond the fanciful or speculative to support the reasonableness of his belief or her consent.’ ## Footnote Circumstance D - complainant was asleep

Question 28

**R v Kamki (2013)** ## Footnote Section 75 SOA 2003

Answer 28

Facts 1. Complainant was intoxicated Held * “A woman can **have the capacity to make a choice** to engage in sexual activity, even when she has had a lot to drink obviously. Alcohol can make people less inhibited than they are when they are sober and obviously everyone is free, we are all free to decide how much to drink and whether to have sex or not. However, if through drink a woman has temporarily lost her capacity to choose whether to have sexual intercourse or to engage in sexual activity of another sort, she would then not be consenting. Takeaway * Meaning that a **drunken intent is still an intent** (Groak [1999]) * Intoxication is not a good defence (**DPP v Majewski**; **DPP v Beard**) * Where a person had something to drink, they are still likely to be able to make a decision ## Footnote Circumstance F - substance was given which may stupify or overpower the complainant

Question 29

What is the case for **Section 74** SOA 2003 ## Footnote Submission

Answer 29

**R v Kirk (2008)**

Question 30

**R v Kirk (2008)** ## Footnote Section 74 - submission

Answer 30

Facts 1. D caused the V to submit into having sex with in order to get money needed by the young and homeless V to buy food Held 1. **Submission** (not consent) 2. COA upheld conviction of rape 3. On grounds that V had “**no choice**” (he could not have consented) Takeaway * Where it is more of a **necessity** (rather than, reluctant consent) - it is rape