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rape: criminal law
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Criminal law rapeSEXUAL OFFENCES ACT 2003
ACTUS REUS - PENETRATION OF VAGINA, ANUS OR MOUTH BY THE D PENIS WHICH THE
VICTIM DID NOT CONSENT TO. ONLY THE SLIGHTEST PENETRATION IS REQUIRED SEEN IN
S79(5)
MENS REA - D DOES NOT REASONABLY BELIEVE THAT THE VICTIM CONSENTED TO THIS.
‘REASONABLENESS IS BASED ON THE STANDARD OF A REASONABLE MAN’
● R V MALONE 1998
‘SEXUAL INTERCOURSE IS AN CONTINUING ACT’
● SO THEY CAN WITHDRAW AT ANY TIME
● R V KAITAMAKI 1985, S79(2)
CONSENT
S74 DEFINES CONSENT ‘PERSON CAN CONSENT IF THEY HAVE AGREED BY CHOICE AND
HAD THE FREEDOM AND CAPACITY TO MAKE THIS DECISION’
S75 IS THE REBUTTABLE PRESUMPTION OF NEGATED CONSENT
THE COMPLAINANT IS ASSUMED TO NOT BEEN ABLE TO CONSENT:
● D USED VIOLENCE IMMEDIATELY BEFORE OR AT THE TIME OF THE RELEVANT ACT
● D CAUSED V TO FEAR THAT VIOLENCE WOULD BE USED IMMEDIATELY BEFORE OR
AT THE TIME OF THE RELEVANT ACT
● V UNLAWFULLY DETAINED WHILST D WAS NOT
● V COULD NOT COMMUNICATE CONSENT DUE TO MENTAL IMPAIRMENT FROM
PHYSICAL DISABILITY
● V WAS ASLEEP/UNCONSCIOUS
● V WAS ADMINISTERED A SUBSTANCE BY ANY OTHER PERSON THAT WAS CAPABLE
OF OVER POWERING OR STUPEFYING THE V AT TIME OF THE RELEVANT ACT.
S76 NEGATED CONSENT THROUGH FRAUD
2(A) DECEIVED THE COMPLAINANT ABOUT THE ‘NATURE OR PURPOSE OF THE RELEVANT
ACT’
R v Flattery - v was told d would be performing surgery on her for her learning difficulties but he was
performing sexual intercourse instead.
R v Williams - v was told d would be performing an act to open up her air passages to improve her
singing but was actually performing sexual intercourse with her.
Both consent in these cases were vitiated by fraud as to the nature and quality of the act..\ however in
R v Linekar - she had intercourse with d with knowledge that she would be paid for the relevant act,
however she did not get paid, held her the fraud did not vitiate the consent. This woman does not
show any sign of being asleep, unconscious and was capable in giving consent, when consent is
given by fraud then it is not a case of rape.
Modern case: R v Lawrence where d said he made false representation that he had done vasectomy
but then impregnated the girl.
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