Sexual Offences

Lecture 9 (December 10th). Rape

At the outset of your study of rape read MC v Bulgaria * (2005) 40 EHRR 20 A full copy of the judgment is
to be found on our UCL criminal law website. This clarifies that member states owe positive obligations
under Articles 3 and/or 8 ECHR to do what can be done to deter the commission of rape and other “grave
acts where fundamental values and essential aspects of private life are at stake”, and that “children and
other vulnerable individuals, in particular, are entitled to effective protection”.

Very serious offence with a maximum sentence of life and is now a statutory offence

STATUTORY DEFINITION OF RAPE

Rape is now defined in the Sexual Offences Act (SOA) 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, and

c) A does not reasonably believe that B consents

Rape was historically 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 effected
with the penis). But both men and women can be victims of rape. Note that penetration is a
continuing 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The rape however momentary is complete on penetration but it continues until the penis is withdrawn.
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 Kaitamaki. There was doubt at the start but it was quite clear during
its 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
kaitamaki 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 the
full offence unless V does not consent to the penetration.

Assume that V does not consent and D has intentionally penetrated V there’s typically rape there. But
despite 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. Even
the reputable press sometimes reports statistics indicating that as low as only 2% of rapists get
persecuted. Studies have shown however that when a rape case comes to trial, the conviction rate is in
line 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 contest
their 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 V
consents. 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 consent

Consent

When 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. (which
Sullivan 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 few
subsequent cases decided since the Act came into force: so far, they seem to have adopted similar
definitions as applied previously. We will note both the old law and the new old law on this basis, and you
will 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 out
those restraints which are incompatible with freedom.

The contentious dividing line (beyond the obvious cases) is when can you say V was so constrained that
she really had no choice?

Some earlier cases prior to 2003 are helpful here

R v Malone [1998] 2 Cr App R 447

Here, V claimed she didn’t consent but was too drunk to resist. This case rebutted the argument (matter
of fact rather than law) that V must in some sense demonstrate/make overt her lack of consent. That
isn’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.

*R 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, both
consume considerable quantities of alcohol. There was no subterfuge by D here. V freely and voluntarily
took the drink. They go back to the flat and V is considerably the worse for drink so the optimum
conditions for choice are far from present. D is aware of V’s condition of course but in any case it
probably approximates his own condition.

There may be evidence (highly contested) that from time to time she passed out and came back to
consciousness. The trial judge made a firm ruling that her condition was incompatible with freedom and
capacity to make a choice. D was aware of that despite his own condition and to persist with intercourse
was rape.

That was the ruling of the trial judge but was successfully appealed on the basis that intoxication was
categorically 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 is
still 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 area
however.

CONCLUSIVE PRESUMPTIONS

To help this uncertainty in the meaning of the words with regards to consent, the legislation first of all
deals 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)

“Capacity” 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 left
undefined and we are only given two broadly defined scenarios, in section 76, where it is clear that capacity
to consent is absent as a matter of law:

“76 (2)(a) the defendant intentionally deceived the complainant as to the nature or purpose of the
relevant act”
But when it comes to sexual intercourse, of course, most adults will know full well what the male will do
with his penis, and (very broadly) what the consequences might be, and so only in rare cases will an adult
not know the “nature” of sex.

It reflects an old leading case,

R v Williams [1923] 1 KB 340

D was a singing coach and he persuaded one of his pupils, a young teenager (over sixteen though), to
have sexual intercourse. His persuasion took the form of telling her this was essentially an exercise to
improve her voice.

The court of criminal appeal upheld the trial judge in his finding that she was unaware of the nature and
purpose of the act. That she took it to be part of the singing lesson package.

The case soon came after again on very similar facts with the same result. Results which Sullivan thinks
are inconceivable. It seems stultifying that they were unaware the acts were sexual intercourse.

Yet it was held that because she was mistaken about the motivation that she failed to understand the
nature and purpose of the act and as such had been raped.

Williams is now codified as statutory law. Contrast Williams with

R v Linekar [1995] QB 250

D visits a prostitute V. It is the clear understanding of both parties that intercourse will take place
and the intercourse will be painful. A sexual service is being offered and D enters the transaction
on the terms between him and V. D has intercourse and then runs off leaving V unpaid.

On the basis of this (pre-Act) case, he was charged with rape on the grounds there was no consent
to the intercourse. CA quashed the conviction on the basis that she was aware of the nature and
purpose of the sex Act. The nature and purpose didn’t change because it was assumed to be paid
for. When she consented to penetration, she knew sufficiently what was happening when she
consented to the act and the wrongdoing was economic. As it were, it seems it’d be a nature of
ordinary fraud under the Fraud Act 2006.

Jonathan Hemming vehemently disagrees with this. Says what should count is whether V would
have consented knowing the full facts. He maintains if V would have withdrawn consent knowing
full facts, there was rape. Sullivan thinks interpreting rape this way would take it too far.

A crucial decision is the impact of dangerous conditions with regards to consent. In particular, the
condition of HIV positive. The question is whether it (namely, a charge under non-fatal offences)
should be taken a step further and saying failure to disclose misleads the person as to nature and
purpose of the act she has consented to.
Sullivan thinks the argument is much stronger here then with the economic one. As something
which would threaten one’s life or a lifetime condition is much more serious.

Similar argument tried with

*R v B [2006] EWCA Crim 2945;[2007] 1 WLR 1567

Would go a large way further as you don’t even need to wait for the disease to be transmitted. As soon
as someone has sex without informing, prosecution would be able to step in which a much more serious
offence. (maximum of a life sentence for rape vs a maximum of 5 years for a non-fatal). Also, it would
probably have to extend to other diseases as well.

Probably those considerations which made CA say here that lack of knowledge about the condition
didn’t vitiate consent to intercourse. So even if the man conceals a sexually transmitted disease, this does
not mean that he is guilty of rape under English law. The woman is considered still to have agreed to sex,
despite her lack of knowledge of the risk of infection

What other things might go to nature and purpose? There is just one other case which induces
speculation as to how far courts might go.

[note: as well as rape there are other serious offences of sexual assault, penetration with an instrument,
and causing others to engage in a sex act without consent. (s1-4 of the Act) the arguments from the
other 3 are relevant for us too]

But is not yet clear whether the word “purpose” has much additional significance in rape cases. Again, most
adults will know why in the usual case any male might want to have sexual intercourse (viz. sexual
gratification). But it is possible that the courts will investigate any purpose D might have in addition or
instead of sexual gratification in wanting to do the act (and not the purpose of the act itself) which matters –
and that could lead to liability in all sorts of situations. There is now some authority for this approach, albeit
in a case brought under section 4 of the Act:

*R v Devonald [2008] EWCA Crim 527

Same question here; whether V understood the nature and purpose of the Act. We know from Williams
that the argument only takes flight if you believe it’s something other than sex. The argument was tried
successfully here where the charge was causing a sex act without consent

Here, V had a relationship with a 16-year old girl and the relationship ended and the girl was upset. Her
upset angered D who was the girls’ father and he starts an internet correspondence with V calling
himself ‘Cassie’. Passing himself off as a girl who would be interested in having sex with V.

Eventually, Cassie (D) persuades V to take all his clothes off in front of a webcam and induces him to
masturbate. The upshot is, all is revealed. The boy realises he’s been duped and humiliated and all of it
was a set-up by the father.
D is charged with the offence of causing a sex act without consent. We have to say that V masturbated
not knowing the nature and purpose his act.

It was held he did not know (good article by Jonathan on it) and even the CA finds there was ignorance
as to the true nature of the act. The theory is V did not know this was essentially an exercise in
humiliation. He took it to be an exercise in sexual gratification and on that basis, it was held he did not
understand the act and on that basis, D is convicted.

If we say, for the purposes of rape, that all these penetrations must be sexually informed, it would seem
that any sex act which is done as a piece of unpleasantness towards V and V was unaware of this other
agenda, then the prospect for imaginative convictions is open.

Sullivan thinks Devonald is right at the extreme. A more pressing case in his mind for a conviction of
rape; contrast the expansion in a sense with the restrictive approach of the recent case;

*R v Jheeta [2007] EWCA Crim 1699; [2008] 1 WLR 2582

V has a relationship with D and V wants to end it. D is determined this should not be the case
and gets up to remarkable strategies to keep the relationship going. He manages to fabricate
police messages directed at V warning her that should she terminate the relationship, D will
surely commit suicide.

As such, the relationship limps on and she allows D to have sexual intercourse with her under
the shadow of this threat. On the face of it this does seem like a more deserving case. The CA
said she hadn’t been raped. That there was nothing on the facts which would affect her
understanding of the nature and purpose of the sexual intercourse.

Sullivan thinks CA rightly said as long as you consent to sex and understand it, you have not
been raped. Sullivan thinks this should apply to devonald too though and that the 2 cases can’t
be easily reconciled.

Other presumption;

“76 (2)(b) the defendant intentionally induced the complainant to consent to the relevant act by
impersonating a person known personally to the complainant”

The most obvious case would be identical twins. E.g. if V is married to one twin, if the other would
impersonate his brother to have sex with V, that’d be rape.

R v Elbakkay [1995] Crim LR 163

D impersonates his twin brother in order to have sex with his brother’s wife.

cf. the facts of Devonald (above)

Note that we have only discussed s.76 here. But if s.76 does not apply (because the defendant had not
deceived the victim), and yet the victim was in ignorance on one of matters specified in s.76, then we might
still say that there is no consent under s.74, because of the victim’s lack of “capacity” to choose. But in this
case – unlike s.76 - the defendant might still avail himself by claiming a reasonable belief in consent.

E VIDENTIAL PRESUMPTIONS

In addition to the conclusive presumptions found in s.76, s.75 of the SOA provides for some evidential
presumptions about consent. If the circumstances which give rise to an evidential presumption are present,
it is to be presumed that V did not consent unless D can adduce evidence to raise an issue as to whether V
consented. Note too that when D claims a reasonable belief in V’s consent (the reasonable belief defence
will be considered below)

How do these presumptions work?

If the prosecution proves that any of the circumstances which give rise to a presumption are present, D is to
be taken not to have reasonably believed that V consented unless D adduces sufficient evidence to raise an
issue. Once he has done that, the full burden of proof shifts back to the prosecution to prove that D’s
evidence is false beyond all reasonable doubt.

Evidential presumptions about consent

(1) If in proceedings for an offence to which this section applies it is proved—

(a) that the defendant did the relevant act,

(b) that any of the circumstances specified in subsection (2) existed, and

(c) that the defendant knew that those circumstances existed, the complainant is to be taken

not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue

as to whether he consented, and the defendant is to be taken not to have reasonably believed

that the complainant consented unless sufficient evidence is adduced to raise an issue as to

whether he reasonably believed it.

(2) The circumstances are that—

(a) 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;

 (b) 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;

(c) the complainant was, and the defendant was not, unlawfully detained at the time of the

relevant act;

(d) the complainant was asleep or otherwise unconscious at the time of the relevant act;

(e) 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;

(f) any person had 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.

(3) In subsection (2) (a) and (b), the reference to the time immediately before the relevant act began is,

in the case of an act which is one of a continuous series of sexual activities, a reference to the time

immediately before the first sexual activity began.

Note: Under the original proposals, things would have been far more robust and would have put a
reverse burden on D. (I.e. if any of the circumstances were proved, it would be assumed there was no
consent unless D could prove that on the balance of probabilities there was consent. Now, D merely has
to adduce sufficient evidence to raise an issue as to whether he reasonably believed in the consent and
the full burden shifts back to the prosecution.)

CONSENT WHEN NO PRESUMPTIONS APPLY

Once we’re through the presumptions (conclusive and evidential) and it’s clear none of these are in play,
we go back to s74, a provision already discussed in part. As required by the section we must resolve
whether V had the freedom and capacity to choose to have sexual intercourse with D.

“Freedom” to agree to penetration is the hardest word of all. After all, when is a person ever completely
“free” to make any “choice”? The Act seems to embrace the previous law (in Olujboga below) which held
that a woman who as much as “acquiesces” to the intercourse gives “freely” her consent; but one who
merely “submits” to it does not. That, of course, just substitutes two imprecise words for one abstract word.
But we are told that both “acquiescence” and “submission” were states of mind of the woman, and that in
cases where V is under pressure, her “freedom” is determined the jury’s evaluation of the particular
psychological state of the woman at the time of the choice:

*R v Olujboga [1982] QB 320

Was taken back to a flat with her consent by a group of men and one of the men (with whom we aren’t
concerned) clearly had forceful non-consensual intercourse with V. It’s beyond doubt that at time T, V
was raped. At T1, D informs her (in brief and crude vernacular) that he wants sex with her and on
hearing this, (and D tried to make a lot of this) she removes her jeans and her underpants. There is then
intercourse between D and V. It was blatantly obvious here however that she was in a very threatening
environment. She’d just been forcefully raped by one of the men and others in the group want sex with
her. The issue is whether she’d been raped by D.

The trial judge and CA cogently found that she had been raped. This would probably be a plain case
under the new legislation as we can say she lacks a freedom to choose in this environment. She knows
violent rape is on the agenda and now, it’s just an exercise in damage limitation

The court drew a distinction along the lines of a continuum. There is on one end of the spectrum, freely
given consent. You move along that continuum and then you go into the zone of reluctant acquiesces.
Where V would much prefer that this was not happening but none the less it is acquiescence (or in the
language of the new Act, a choice she has made). You move further along and you leave that zone, and
you reach the territory of mere submission. Where V merely submits to the ghastly inevitable (Olujboga
itself) and in that case, there is no consent.

The danger is that people readily disagree about what part of the continuum we may be at. There’s
often disagreement b/w males on the one hand and females on the other as to what part of the
continuum they’re in and this can be seen in the cases.

There’s Olujboga and then there’s a briefly reported but potentially important decision in the case of

R v Kirk [2008] EWCA Crim 434 (remember, we’re now dealing with cases where there are no
presumptions)

Here, V was a 14-year old girl. She was homeless and hungry. She has previously allowed D, a man in his
30s, to have sex with her in return for small payments. V as we can tell is not in a good way. She knows
where D works. So she goes on to the workplace. Waits a couple of hours there for D’s shift to finish.
The other workmen leave and then D has sex with V for 3.75 pounds with which she can buy some food.

D is charged with rape. The trial judge finds that because of her situation (hunger, destitute etc…), she
lacked the freedom to exercise choice. Her will was overwhelmed by her circumstances. D was aware of
those circumstances. Even though he may have thought she was consenting, he was aware of the facts
that vitiated in law her consent. On that basis, the trial judge convicted him of rape and the CA in the
briefest of judgements concurred in that verdict. So after kirk, it’s not that easy to say what the
parameters of rape are.

*R v Jheeta [2007] EWCA Crim 1699

(where D poses as the police saying that he’ll commit suicide etc…)

If we now treat Jheeta at large (and not under presumptions) where she was receiving messages from
what she thought was the police, the focus on that case was on the conclusive presumption of whether
she understood the nature and presumption n of the Act. But if you put it at large under s74 and say
her choice was so constrained that she lacked the freedom to choose, Sullivan thinks this line of
argument is assisted by Kirk. He’s in favour of it but isn’t sure where it’s going.

REASONABLE BELIEF IN THE OTHER ’S CONSENT

Already mentioned that a belief in consent must be reasonable to afford D an excuse. Exam scripts every
year continue to refer to the case of Morgan v DPP [1976] AC 182 where the HL took an entire
subjectively approach to mens rea where they held it to be “a matter of inexorable logic” that if the man is
absolutely sure that the victim consented, he lacked the mens rea (fault) for the offence of rape:

But the effect of s.1(1) c, to be read together with s.1(2) * of the Sexual Offences Act 2003, clearly over-
rules Morgan. The man would now not only need to have been sure in his own mind about the fact that the
woman has chosen to agree (and was free to agree, and had the capacity to do) – he will also need to have
had reasonable grounds for the mistaken belief. So far we have had just one case on reasonable mistake in
s.1 (c), which unfortunately was only an appeal against sentencing and so a rather surprising decision by the
trial judge was not corrected, but merely doubted:

R v Whitta [2006] EWCA Crim 2626

So further cases like Satnam and Fotheringham no longer apply. A further by-product of this is that
intoxication is no longer an issue in rape case. When there was a purely subjective approach (prior to
2003), problems could be caused by intoxicated defendants who said they truly believed that V
consented.

The test is now one of reasonableness and of course that implies an objective standard so an evaluation
by a sober, reasonable person.

RAPE OF A CHILD UNDER 13

If complainants are under thirteen, the perpetrator is automatically guilty of “rape of a child” under section
5 of the Sexual Offences Act 2003. This offence is quite different from rape under section 1 as we have
discussed it. It is proven even though the child might have consented (if we were able to apply the principles
above) and even if D reasonably thought the child to be over thirteen; and again even if D himself is a child.
This, then, is the most radical exception to the rule that (for a serious offence) mens rea must be proven as
to the elements of the offence. Indeed, liability is strict regarding both the issues of consent and of age. One
might think that prosecutors have to be careful with charging this offence, and should prefer a less grave
charge where it does seem that there was consent and D had good reason to be mistaken about V’s age,
but the House of Lords (narrowly) decided otherwise in the first case brought before it concerning the
Sexual Offences Act 2003:

*R v G [2008] UKHL 37;[2008] 1 WLR 1379 (do not confuse with recklessness case)

Here, D was a boy of 15. He had a girlfriend who was 12. The prosecution accepted that he
reasonably believed the girl to be 15 herself. The reasonableness of the belief is corroborated
by the facts of the case. Notwithstanding all of that, his conviction for rape was confirmed by
the HL unanimously. Despite powerful arguments some based on HR provisions. The sum total
of all that is this variety of rape is a crime of strict liability. It can instigate much teenage sexual
activity. The upshot of G was that he was sent away for the minimum of 5 years and entered
onto the lifelong category of a sex offenders list.

S thinks it’s rather over the top for a 15-year old boy having a rather inadvisable relationship
with a girl.