Rape
- Sexual Offences Act 2003:
- Actus reus:
Penetration must be done without the victim's consent
- Mens rea:
Must be no reasonable belief in consent
Jury has to decide under s1(2) whether a belief is reasonable
- Penetration:
If D is aware of the consent but does not stop they can still be liable for rape
- Consent:
They must have agreed by choice, with the freedom and capacity to make that choice
How much freedom or capacity must V have lost in order to not be able to consent? E.g. Influence of alcohol
Vague and contestable - guiding the jury; possibility of jurors to allow their own prejudices and preconceptions to come into play
Ellison and Munro 2009:
Explored the impact of C's conduct during and post-assault on the jurors' assessment on her credibility
Expectations that force would have been used and injuries suffered as a result
Where injuries were sustained but were minor, some jurors seemed unconvinced and came up with alternative explanations for these minor injuries
Jurors expected C to put up a fight (this doesn't always happen)
Expectation that sex only happens in certain places, and if it was in an unusual place, it is more likely to be rape
Expectation that people who had only spent a small amount of time together before was less likely to allow consent
More suspicious if C seems 'out of D's league' - unless he was rich
Their research suggested that jurors in rape cases couldn't put aside preconceptions and prejudices
'Strange rape' is relatively rare: large percentage of cases are between people who have had prior interaction
- Intoxication:
Examined the heavy voluntary intoxication and consent under SOA for the first time
After a heavy night drinking, D and C had sexual intercourse. C was conscious but was extremely drunk and claimed she "would not have consented".
D said that the court hadn't given the jury assistance with the meaning of 'capacity'
Where C voluntarily consumed large amounts of alcohol but was still capable of choosing whether or not to have intercourse, it is not rape
Capacity to consent could evaporate well before C becomes unconscious
Different individuals have different responses to intoxication so a rigid system would be unreasonable (10 drinks = lack of consent)
Difficulties of giving the court guidance on how much alcohol incapacitates C
Amnesty International 2005:
30% of respondents thought that being drunk makes a woman in some way responsible for being raped
4% states it makes them totally responsible
60% thought that drunkenness did not make a woman responsible at all
- Consent and intoxication:
H 2007:
C was extremely drunk and got into a car with 4/5 young men after leaving her friends
One D pressurised C into sex and did, after asking her
Other Ds asked her for consent too
C couldn't remember what she had said
Her evidence was that she didn't think she would have consented
The fact that C did not say "no" at the moment of initial penetration was not fatal to the prosecution case
C said she'd repeatedly said she didn't want to have sex when she got into the car
Gunby 2010 'Alcohol-related Rape Cases' Journal of Criminal Law
No objective standard of intoxication
Barristers were reluctant to apply a strict mechanical rule for intoxication
Cases tend to focus on absence of consent rather than incapacity to consent
Barristers might well advise to not focus on capacity, but rather tell the court they said no
- Section 76:
s76 (b): D intentionally induced C to consent to the relevant act by impersonating a person known personally to C.
Jheeta 2007:
C received threats and D promised to protect her
D was in fact sending the threats
When C tried to break off the relationship, D sent messages from 'the police' telling her she had to have sex with him or face a fine
56 demands over a four-year period, she complied every time
Family discovered the letters
Real police were informed and D was arrested
D was charged with the rape of C for each of the instances (fell within s 76(2)(a))
C had not exercised a free choice/consent for the purposes of s 74
- Pre-2003 cases:
Prostitute: someone said they would have sex with her and pay her
This would not come under s 76 because it was not regarding the nature or purpose of the act
Flattery 1876-77:
Daughter was having seizures
Someone said they could solve unusual medical problems
He claimed there was a surgical operation which needed to be done
He had sex with her
Would come under s 76
Williams 1923:
Singing lessons, said she wasn't loud enough
Had sex with her to 'open her air passage'
Didn't know she was having sex
- 'Impersonating a person known personally to the complainant
Doesn't count if they pretend to be a celebrity: only counts if they thought it was someone they knew e.g. their husband
Elbekray 1995: D got into C's bed and had sex with her, she thought it was her husband
- Evidential presumptions about consent
Using violence or causing C to fear immediate violence
Caused C to fear violence against another
Unlawfully detaining C at the time of the act
C was asleep or unconscious
C was not able to communicate due to physical disability
D administered a substance that stupefied or overpowered C
- Structuring problem question answers
Define the offence with reference to the act
AR: penetration, V, A or M, without consent (s. 76 - pretend the purpose or person, 75 - evidential presumptions, 74 - capacity to consent)
MR: intent, without reasonable belief in consent (s. 1(2), 76, 75)
- D pretends to be C's boyfriend in order to have sex with him. Is D liable for rape?
s.76 (2)(b): pretends to be someone he is not
Probably
- D pretends to be a friend of C's from facebook in order to have sex with her. Is D liable for rape?
'Personally known'? (s. 76)
Probably not
- D pretends to be Colin Firth in order to have sex with C. Is D liable for rape?
No; doesn't personally know him (s. 76) (unless she does personally know Colin Firth!)