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5 - Rape

5 - Rape

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Published by: manavmelwani on May 03, 2011
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Sexual Offences
Lecture 9 (December 10th). Rape
At the outset of your study of rape read
MC v Bulgaria
* (2005) 40 EHRR 20
full copy of the judgment isto be found on our UCL criminal law website.
This clarifies that member states owe positive obligationsunder Articles 3 and/or 8 ECHR to do what can be done to deter the commission of rape and other graveacts where fundamental values and essential aspects of private life are at stake, and that children andother vulnerable individuals, in particular, are entitled to effective protection.Very serious offence with a maximum sentence of life and is now a statutory offence
 Rape is now defined in the Sexual Offences
ct (SO
) 2003
.s. 1 A person (A) commits rape if:a) he intentionally penetrates the vagina, anus, or mouth of another person (B) with his penis,b) B does not consent to the penetration, andc) A does not reasonably believe that B consents
Rape was h
istorically confined to vaginal rape but the scope has been increased by this statute.
Under this definition, only men can perpetrate rape (because the penetration must be effectedwith the penis). But both men and women can be
of rape. Note that penetration is acontinuing act:
Kaitamaki v R
[1985] AC 147 (preserved in s. 79 (2) SOA 2003)
 The rape however momentary is complete on penetration but it continues until the penis iswithdrawn.So at time of penetration, T, the offence is complete and D can be liable.The provision is for the situation is where there may be doubt to the state of Vs consent at the point of penetration. As illustrated well by
. There was doubt at the start but it was quite clear duringits continuance that D wanted V to desist. Of course in this case, D continued to have now non-consensual intercourse with V and a verdict of rape was sustained on 2 appeals. The learning from
is now encapsulated in the statutory provisions.
When does the victim consent to the penetration? 
The next feature is that the rape must be non-consensual. D may attempt rape but cannot commit thefull offence unless V does not consent to the penetration.Assume that V does not consent and Dhas intentionally penetrated V theres typically rape there. Butdespite Ds lack of consent, it may be that D asserts a belief that he had been given consent by V.
[Brief digression; there are certain misconceptions about rape and the possibilities of conviction. Eventhe reputable press sometimes reports statistics indicating that as low as only 2% of rapists getpersecuted. Studies have shown however that when a rape case comes to trial, the conviction rate is inline with other serious offences (between 45-50%). The genuine ground of worry for rape is attrition.The way the number of potential claimants is sifted down and very few rape claimants go on to contesttheir alleged rapist in a criminal trial. The problem however doesnt really lie with the definition of rape,it lies with the prosecution process]Perhaps the most important change of the law of all is that now, D must have a reasonable belief that Vconsents. Prior to 2003, there was a far more permissive regime whereby any belief in the presence of consent would suffice. Those days are gone.Thats the skeleton of rape. The crucial issue where we bring out substantial treatment is that of consentConsentWhen can it be said that V has consented?Extremely broad provisions supplemented by mandatory presumptions and ordinary presumptions.Before we descend to details of those, there is a broad provision of consent to be found in s74.(whichSullivan thinks is too broad to be useful.)
Consent is defined in s.74 of the Sexual Offences Act 2003 asan agreement by choice, by someone who had the freedom and capacity to make that choice.
But the words choice, freedom and capacity are all left undefined (!), and so we must look to the fewsubsequent cases decided since the Act came into force: so far, they seem to have adopted similardefinitions as applied previously. We will note both the old law and the new old law on this basis, and youwill see the similarities.So in any case whether or not a mandatory presumption applies, this provision governs the question of consent. Was there freedom and capacity to make that choice?Those are broad words and there has been a lot of work by the courts over the last decade to sift outthose restraints which are incompatible with freedom.The contentious dividing line (beyond the obvious cases) is when can you say V was so constrained thatshe really had no choice?Some earlier cases prior to 2003 are helpful here
v Malone [1998] 2 Cr App
Here, V claimed she didnt consent but was too drunk to resist. This case rebutted the argument (matterof fact rather than law) that V must in some sense demonstrate/make overt her lack of consent. Thatisnt too strenuous on courts but the issue was always of large.In certain circumstances though even the lack of overt protest, even verbal, arose after the act.
v Bree [2007] EWCA Crim 804
D and V, a couple known to each other go out for a date and during the course of the evening, bothconsume considerable quantities of alcohol. There was no subterfuge by D here. V freely and voluntarilytook the drink. They go back to the flat and V is considerably the worse for drink so the optimumconditions for choice are far from present. D is aware of Vs condition of course but in any case itprobably approximates his own condition.There may be evidence (highly contested) that from time to time she passed out and came back toconsciousness. The trial judge made a firm ruling that her condition was incompatible with freedom andcapacity to make a choice. D was aware of that despite his own condition and to persist with intercoursewas rape.That was the ruling of the trial judge but was successfully appealed on the basis that intoxication wascategorically not associated with undermining the capacity to consent.The question was at large as to whether there was a choice. As the CA expressed it, a drunken choice isstill a choice adapting the adage used elsewhere a drunken intent is still an intentSo freedom and capacity dont require the optimum conditions for choice. Its still an uncertain areahowever.
 To help this uncertainty in the meaning of the words with regards to consent, the legislation first of alldeals with conclusive presumptions. First of all, situations where there is categorically no consent.
(Sullivan thinks putting them in the form of conclusive evidential presumptions is unnecessary complex.Essentially given x, there is no consent)
to agree to penetration meant previously that V must know broadly what the act involves, and(probably) why D wants to do it. The SOA adopts a more convoluted approach. Capacity in s.74 is leftundefined and we are only given two broadly defined scenarios, in section 76, where it is clear that capacityto consent is absent as a matter of law:76 (2)(a) the defendant intentionally deceived the complainant as to the nature or purpose of therelevant act

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