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
TUTORY DEFINITION OF R
Rape is now defined in the Sexual Offences
.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
 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 Vs 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 theres typically rape there. Butdespite Ds lack of consent, it may be that D asserts a belief that he had been given consent by V.