Rape

The definition of rape is set out in section 1, which provides:

A person (A) commits and offence if –

 he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
 B does not consent to the penetration, and
 A does not reasonably believe that B consents
Whether a belief is reasonable is to be determined having regard to all the circumstances,
including and steps A has taken to ascertain whether B consents.
Sections 75 and 76 apply to an offence under this section.
Sections 75 and 76 address certain presumptions as to consent and will be considered below.
The offence can be broken down into four elements:

 Penetration with the defendant’s penis of the complainant’s vagina, anus or mouth;
 The complainant did not consent;
 The penetration was intentional;
 The defendant did not reasonably believe that complainant consented.
The first two elements contain the actus reus of the offence, the second two the mens rea.
Actus Reus
Penetration
The first part of the actus reus of rape makes it clear that it is an offence that can only be
committed by a man. Section 79(3) provides that parts of the body that are surgically constructed
fall with the remit of the Act. The limitation on penetration with a penis means that a woman can
never be guilty of rape.
The term penetration does not simply apply to the initial penetration, but constitutes a continuing
act from entry to withdrawal (s 79(2)).
Absence of Consent (Actus Reus portion)

Firstly, consent forms part of the actus reus and the mens rea of the offence, and therefore it is
important to distinguish between the two elements. Secondly, the notion of what constitutes
consent is largely a jury question.
Section 74 provides that: (The meaning of consent)

For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and
capacity to make that choice.
A complainant may or may not consent without any extrinsic demonstration of their frame of mind:
R v Kirk [2008] EWCA Crim 434
The issue of consent is further complicated by the fact that it can cover a range of reactions
ranging from reluctant agreement to an express desire for the penetration to occur (R v Watson
[2015] EWCA Crim 559).

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The second element contained within the definition of consent relates to the complainant’s
capacity to give consent (R v Howard(1965) 50 Cr App R 56).
In R v Cooper [2009] 1 WLR 1786 it was held that the question that must be asked is firstly,
whether a complainant is able to understand the information relevant to the decision that they
must make and secondly, whether they are able to weigh that information to be able to make a
choice.
The second situation where capacity may be a specific issue relates to where a complainant is
voluntarily intoxicated (R v Coates [2008] 1 Cr App R 52).
R v Hysa [2007] EWCA Crim 2056
Until relatively recently a woman could not refuse to have sexual intercourse with her husband.
This position was changed in R v R [1992] 1 AC 599. (Marital rape is now an offence under the
act and common law)
Mens Rea
Intention to Penetrate
For these purposes, all that is required is that the act of penetration is a deliberate or voluntary
one (R v Heard [2008] QB 43).
No Reasonable Belief in Consent (Mens rea portion of consent: where the S. 75 and 76
presumptions become relevant for assessment)
This is not an entirely objective test, in that section 1(2) provides that regard should be had to all
of the circumstances.
Particular personality traits or a particular mental disorder might be relevant to whether a
defendant can be considered to have a reasonable belief in consent (R v Braham [2013] EWCA
Crim 3).
Self-induced intoxication cannot give rise to a reasonable belief in consent (R v Grewal [2010]
EWCA Crim 2448).
Section 1(2) does not require a defendant to take positive steps in an attempt to ascertain whether
a complainant is, in fact, consenting.
Presumptions as to Consent
SOA 2003 creates two distinct types of presumptions as to whether the complainant consented
to the penetration.
Evidential Presumptions S. 75

These presumptions create a degree of difficulty in that where one arises, a defendant must
produce sufficient evidence to show that the presumption is rebuttable (s 75(1)). However, it is
not necessarily sufficient for a defendant to assert that they believed that, despite the section 75
presumption, the complainant consented (R v Ciccarelli [2012] 1 CR App R 190).
The application of the section is fourfold:

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If a section 75 presumption arises and the defendant cannot adduce evidence to rebut it, consent
will not occur or they will not have a reasonable belief in consent.
If they are able to adduce evidence, the question as to whether the evidence is sufficient to rebut
is one for the jury.
If the jury consider the evidence sufficient to rebut, the prosecution must produce evidence that
demonstrates that the complainant did not consent.
In this circumstance, the ordinary approach as to the defendant’s reasonable belief applies.
There are six evidential presumptions:
 Any person was, at the time of the relevant act or immediately before it began, using violence
against the complainant or causing the complainant to fear that immediate violence would be used
against him. It is important to note that the use or threat of violence need not come from the
defendant. It is violence directed at the complainant, whatever its origin that is relevant.
 Any person was, at the time of the relevant act or immediately before it began, causing the
complainant to fear that violence was being used, or that immediate violence would be used,
against another person.
 The complainant was, and the defendant was not, unlawfully detained at the time of the relevant
act.
 The complainant was asleep or otherwise unconscious at the time of the relevant act. This section
reflects that view set out above that an unconscious person cannot consent.
 Because of the complainant’s physical disability, the complainant would not have been able at the
time of the relevant act to communicate to the defendant whether the complainant consented.
 Any person administered to or caused to be taken by the complainant, without the complainant’s
consent, a substance which, having regard to when it was administered or taken, was capable of
causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.
The important point in the context of this presumption is that the complainant’s condition at the time
that the relevant act occurred is irrelevant to the operation of the presumption. All that is required
is that the overpowering drug is administered, it does not matter whether the complainant was
actually overpowered. (provision regarding date rape soporific drugs)

The ability for these presumptions to be rebutted is limited.

Conclusive Presumptions S. 76
There are two conclusive presumptions set out within section 76(2). The first of these provides
that a complainant will not be considered to have consented if the defendant intentionally
deceived the complainant as to the nature or purpose of the relevant act (s 76(2)(a)).
This presumption will arise where a defendant has, for example, informed a complainant that they
are going to perform a medical procedure on them where in reality the defendant simply intends
to have sexual intercourse, with the result that the complainant consents to the penetration (R v
Flattery(1877) 2 QB 410).
R v Jheeta [2007] 2 Cr App R 477 and R v Devonald [2008] EWCA Crim 527
The second conclusive presumption arises where the defendant induces the complainant to
consent to the relevant act by impersonating a person known personally to the complainant (s
76(2)(b) (R v Elbekkay [1995] Crim LR 163).

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Non-disclosure of sexually transmitted diseases
In R v B [2007] 1 WLR 1567, it was made clear that non-disclosure of a sexually transmitted
disease did not activate section 76(2)(a). It was also held in R v Dica [2004] QB 1257 that non-
disclosure would not vitiate consent under section 74. However, technically consent as to an
offence like battery would be vitiated here (see the consent section on assault and battery
offences in the subject guide)
Complainant’s Mistake
The position in respect of whether a complainant consents with a mistaken belief as to the nature
or quality of the act is linked closely to both section 76 and the general ability to make an informed
choice (R v Tabussum [2000] 2 Cr App R 328 [mistake might be interpreted as to the nature and
quality of the act)

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