Offence of Rape

Facts:
The male university students (Abe, Chris and Dan) were on Spring Break. They met
a young woman named Mary who they lured back to their hotel room. The guys
made repeated sexual advances to Mary. She rebuffed the sexual advances from
them except Dan. Mary said she would have sex with Dan but not with the others.
Abe said, If Mary isnt willing to have sex with all of us, then well have to force
her. Are you guys with me? Chris nodded his assent. Dan just stood there and did
not respond. Mary objected and said she wanted to leave. Abe locked the door so
Mary couldnt get out.
Chris suddenly had a change of heart and said, Im not going to go through with it,
and I think all of you should stop as well. at that point, Chris left the hotel room.
Abe then forcibly held Mary down and proceeded to have intercourse. Meanwhile
Mary passed out.
Dan decided that since Mary had said that she wanted to have sex with him, it was
OK and he proceeded to have sexual intercourse with unconscious Mary. After Dan
had sex with Mary, Mary woke up and started screaming. She lodged the police
report.
Police arrested all the three for the offence of rape.
Advise Abe, Chris and Dan.

Rape under Brunei Law

Section 375 reads:
A man is said to commit rape, who except in the case hereinafter excepted, has
sexual intercourse with a woman under circumstances falling under any of the 5
following descriptions
a) Against her will;
b)Without her consent;
c) With her consent, when her consent has been obtained by putting her in fear of
death or of hurt;
d) With her consent, when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is, or
believes herself to be, lawfully married;
e) With or without her consent when she is under 14 years of age.
Explanation Penetration is sufficient to constitute the sexual intercourse necessary
to the offence of rape.
Exception Sexual intercourse by a man with his own wife, the wife not being under
13 years of age, is not rape.

Abe
Mary said she would have sex with Dan but not with the others.
If Mary isnt willing to have sex with all of us, then well have to force her. Are you guys with
me?
Mary objected and said she wanted to leave
Abe locked the door.
Forcibly held her down
Proceeded to have intercourse
Whether Abe has committed the offence of rape under S. 375 of Brunei Penal Code.
1) Did he satisfied the elements of rape under S. 375?
isnt willlingforceintercourse@penetration DPP v Morgan
2) Mary could have escaped! [DEFENCE]
Chris left the hotel room after Abe locked the door. Which means that the door was no longer locked!
She had the time (even if it was only a few seconds or minutes) to escape as:
(i) the door was not locked
(ii) She was not held / she was able to move. U0nlike in DPP v Morgan, where the victim was held on
all her 4 limbs the whole time. BUT she (Mary) didnt escape.
(iii) Abe was the only person in the room who had the bad intention towards her, as the others did not
agree (or show agreement) with Abe

DPP v Morgan [1976] AC 182

per Lord Hailsham: According to Mrs Morgan she consented to none of this and made
her opposition to what was being done very plain indeed. In her evidence to the court,
she said that her husband was the first to seize her and pull her out of bed. She then
'yelled' to the little boy who was sleeping with her to call the police, and later, when
the elder boy came out on the landing, she called to him also to get the police, and
'screamed'. Her assailants, however, covered her face and pinched her nose, until she
begged them to let her breathe. She was held, wrists and feet, 'dragged' to the
neighbouring room, put on the bed where the various incidents occurred. At this stage
she was overcome by fear of 'being hit'. There was never a time when her body was
free from being held. When it was all over she grabbed her coat, ran out of the house,
drove straight to the hospital and immediately complained to the staff of having been
raped. This last fact was fully borne out by evidence from the hospital.

 S. 376:
(1) Subject to subsection 2, whoever
commits rape shall be punished with
imprisonment for a term which may
extend to 30 years, and shall also
be punished with whipping.
Abe is guilty of offence of rape.

Chris
Abe: If Mary isnt willing to have sex with all of us,
then well have to force her [Chris initially
agrees]. Are you guys with me?
Chris nodded with assent. [intention]
Had a change of heart and said, Im not going to
go through with it, and I think all of you should stop
as well. [cancels intention]
Left the hotel room
Can he be charged with the offence attempts
to commit rape? AND facilitate the
commission of rape (S. 376(2))?

 S. 376(2): Whoever, in order to commit or to

facilitate the commission of an offence of rape
against any woman (a) voluntarily causes hurt to her or to any other person; or
(b) puts her in fear of death or hurt to herself or any other
personshall be punished with imprisonment for a term of
not less than 8 years and not more than 30 years and shall
also be punished with whipping with not less than 12
strokes.
*But, in the facts, Chris expressly indicates that he is
withdrawing from being a party/accomplice in the attempt
to rape Mary.

Dan

1)

Made sexual advances to Mary. Mary does not rebuff.

Mary expressed that she would have sex with Dan but not with the others.
Abe said, If Mary isnt willing to have sex with all of us, then well have to
force her. Are you guys with me?
Dan just stood there and did not respond.
Abe forcibly has intercourse with Mary. Mary passes out.
Dan decided that it was OK to have sex with Mary, because she had
initially expressed that she would have sex with Dan.
Dan has sexual intercourse with unconscious Mary.
Whether Dan be convicted for the offence of rape. AND offence to
facilitate the commission of rape (S. 376(2)).
Mary had expressedly consented to sex with Dan. Thus Dan has
reasonable belief that Mary consented! (whether reasonable on the mind
of another reasonable man). Unreasonable: because of the fact that
Mary rejected and wanted to get out.

2) Sexual Offences Act 2003: Evidential Presumptions to Consent: s75

Applies to the following situations. (c) the victim is unlawfully detained and
the defendant is not; (d) the victim was asleep or otherwise
unconscious. In relation to this, the prosecution have to establish one of the
listed circumstances rather than having to prove that there was no consent.

Larter and Castleton (1995) Crim LR

75:
There, D had sexual intercourse with V, a 14year-old girl, who was asleep at the time. He
was charged with rape and argued that it had
to be proved that V had demonstrated lack of
concent. The Court of Appeal upheld Ds
conviction, confirming that it is not necessary
to prove a positive dissent by V. it is enough
that he/she did not assent. On these facts,
there would now be evidential presumption
that V was not consenting, requiring D to prove
that she was consenting.

 S. 376(2): Whoever, in order to commit or to

facilitate the commission of an offence of
rape against any woman (a) voluntarily causes hurt to her or to any other
person; or
(b) puts her in fear of death or hurt to herself or any
other personshall be punished with imprisonment
for a term of not less than 8 years and not more than
30 years and shall also be punished with whipping
with not less than 12 strokes.

Dan is guilty of offence of rape and facilitate the

commission of rape.