CRIMINAL LAW 6TH EDITION

MAY 2004 UPDATE

Rape
This update relates to Chapter 18
The new definition
Section 1 of the Sexual Offences Act 2003 defines rape in this way.
(1) A person (A) commits an offence 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, and
(c) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the
circumstances, including any steps A has taken to ascertain whether B
consents.
This definition replaces that found in the Sexual Offences Act 1956, s1, as amended,
and s1 (1) (c) and (2) replace s1(2) of the Sexual Offences (Amendment) Act 1976.
The principal changes are that rape can now by committed by the penetration of the
mouth by the penis (sometimes called oral rape) and that the mens rea is extended to
include situations where the accused had an unreasonable belief in the victims
consent (overruling DPP v Morgan [1976] AC 182 for the purposes of rape: s2 of the
2003 Act creates the offence of assault by penetration and s3 creates the offence of
sexual assault, the replacement for indecent assault, and the mental element in both
offences includes an unreasonable belief in the victims consent).
Introduction
The Act is based on but not the same as the Law Commissions Report on
Consent in the Criminal Law, 2000, the Home Office Consultation Paper, Setting the
Boundaries, 2000, and the White Paper, Protecting the Public, 2002. The 2003 Act is
the culmination of several changes in the law: in R v R [1992] 1 AC 599 (HL) it was
held that husbands could rape their wives, even when they were cohabiting; since the
Sexual Offences Act 1993 boys aged 10-14 can be guilty of rape; and by the Criminal
Justice and Public Order Act 1994 rape was extended to include anal rape of men
and women.
Definitions
The act is restricted to penetration by the penis. Therefore, it can still only be
committed by men. Penis includes a surgically constructed penis and vagina
includes a surgically constructed vagina (s79(3). By s79(9) vagina includes vulva.
Rape is complete on penetration; however, if the victim consents to penetration but
withdraws consent after penetration, the accused must in turn withdraw his penis, as
s79(2) makes clear (penetration is a continuing act from entry to withdrawal.). It is
uncertain how much time a man has to withdraw: the governments view was that he
would have a reasonable time and whether or not the time he took was reasonable

would be left to the juries good sense (cf. Kaitamaki v R [1985] AC 147 (PC) and
Cooper [1994] Crim LR 531, discussed in the book).
Section 74 states in part: a person consents if he agrees by choice, and has
freedom and capacity to make that choice. There is no need to prove active
resistance. By s76 it is conclusively presumed that the victim did not consent and that
the accused did not reasonably believe that he or she consented if (a) the defendant
intentionally deceived the complainant as to the nature or purpose of the relevant act;
or (b) the defendant intentionally induced the complainant to consent to the relevant
act by impersonating a person known personally to the complainant. Note that to fall
within s76 that the accuseds deception or inducement must have been intentional. By
s75 there is a rebuttable presumption that the victim did not consent and that the
accused did not reasonably believe in the victims consent if the accused was using or
threatening to use violence whether against the victim or some other person; if the
complainant was being unlawfully detained; if he or she was asleep or otherwise
unconscious; if he or she was because of physical disability unable to communicate
consent; or if he or she had been administered a stupefying or overpowering
substance.
Accordingly there are three situations involving consent: the conclusive
presumption in s76; the rebuttable presumption in s75; and the general rule, the
default position, in s74. There is no minimum age at which children can agree by
choice to penetration but as s74 states; they must have capacity to give agreement. If
a child under 16 does freely agree, the crime is not one of rape itself but for example
of rape of a child under 14 (s5 of the 2003 Act; see also ss6-15 of that statute, all of
which deal with sexual offences against children). A mentally ill or mentally disabled
person can consent if he or she does so within s74. The problem again is one of
capacity, and presumably he or she must be Gillick-competent (see Gillick v West
Norfolk and Wisbech AHA [1986] AC 112 (HL)).
Section 74 also applies in this situation: the victim is not so drunk that he or
she is asleep or otherwise unconscious (s75) but is, lets say, loudly demanding
sexual intercourse but he or she would not have been so acting, had he or she had
been sober; in other words, his or her inhibitions have been loosened by alcohol. In
that event the jury must decide whether there is an agreement by choice to penetration
and whether the victim had the freedom and capacity to make that choice. It may be
difficult for a jury to decide these issues and it would not be surprising if juries came
to different decisions. Such an outcome, however, is antithetical to justice for in one
instance the accused is guilty of an offence with a maximum sentence of life
imprisonment and in the other is not guilty of that offence.
Section 75 is largely self-explanatory but note that it does not apply if the
accused makes a threat to destroy or damage property.
Section 76 is based on the common law, but the first point to make is that even
if the facts do not fall within s76, there can still be a lack of agreement within s74. For
example, to fall within s76 (2)(a) the accused must intentionally deceive the victim as
to the nature or purpose of the penetration. If the victim is mistaken as to the nature or
purpose but not because of the accuseds deception, s76(2)(c) does not apply but s74
does. The application of s76 may be illustrated by the facts of cases mentioned in the
book.
Williams [1923] 1KB 340: the accused persuaded the victim into agreeing to sexual
intercourse by saying that the penetration would improve her breathing. Under both
the old and the new law the accused is guilty of rape. He has intentionally deceived
her as to the nature of the act. If the victim knew what sexual intercourse was but

she was told by the accused that engaging in such conduct would improve her singing,
there is deception as to the purpose within s76, though not as to the nature.
Linekar [1995] 2 Cr App R 49: the victim, a prostitute, consented to sex with the
accused for 25. The Court of Appeal held that the facts did not constitute rape: the
accuseds deception that he would pay her, but in fact he did not, did not invalidate
her consent. There was no deception under the old law as to the nature of the act;
similarly under the new law there is no deception as to the purpose or as to the
nature of the act.
Tabassum [2000] 2 Cr App R 328: this was a case on indecent assault. The Sexual
Offences Act 2003 replaced this crime with the offence of sexual assault (s3). In
respect of the old and the new crime the law as to consent is the same as in the old and
the new (respectively) offence of rape. The accused touched womens breasts,
allegedly to show them how to conduct self-examinations. He had no medical training
but he lied that he was a breast cancer specialist undertaking a breast cancer survey.
The Court of appeal held that the women consented to the nature of the act but not as
to the quality; therefore, the accused was guilty. Tabassum was much criticised for
drawing a distinction between nature and quality. Under the new law, however, the
conviction is more securely grounded. The victims did not consent to the purpose of
the touching.
Section 76 also deals with the conclusive presumption of the lack of consent
where there is a mistake as to identity. The person impersonated must be one known
personally to the complainant. Therefore, s76 does not apply when the accused
deceives the victim into believing that he is a rock star. Similarly, s76 does not apply
when the accused deceives the victim as to his wealth in order to achieve penetration.
As with s75, if s76 does not apply, the general rule in s74 applies. To use a pre-Act
case as an example: in Elbekkay [1995] Crim LR 163 the victim thought that the
accused was her boyfriend; he (the accused) did not impersonate him. Under the new
law s76 does not apply because there was no impersonation; however, s74 does apply
and a jury may well hold that the victim consented to sex with her boyfriend, not with
the accused, and that therefore there was no agreement by choice within s74.
The mental element consists of intentional penetration and the accuseds lack
of a reasonable belief that the victim is consenting. In relation to the second aspect the
accused will have the mental element if he knows that the accused is not consenting,
if he gives no thought as to whether or not he or she is consenting, and if he has no
reasonable grounds for believing that he or she is consenting. Morgan, above, is
overruled: the men did not believe on reasonable grounds that the woman was
consenting. Sections 75 and 76, quoted above, apply to the lack of reasonable belief in
consent. For example, there is a rebuttable presumption (s75) that the accused does
not have a reasonable belief in consent when the victim is asleep; and there is a
conclusive presumption (s76) when the accused deceives the victim as to the nature or
purpose of the penetration or impersonates a person personally known to the
complainant. Section 1(2), quoted above, instructs the jury to take into account all the
circumstances, which include, presumably, nods and winks indicating a willingness to
engage in sexual congress.