CRIMINAL LAW

SEXUAL OFFENCES ACT 2003 (RAPE)

Introduction

Since almost all sexual offences are now contained within the provisions of the Sexual Offences
Act 2003 (SOA 2003), many of the key terms are interchangeable between the various offences.

Rape

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

1. A person (A) commits and offence if –

1. he intentionally penetrates the vagina, anus or mouth of another person (B) with his
penis,
2. B does not consent to the penetration, and
3. 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 and steps A has taken to ascertain whether B consents.
3. 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

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:

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.

Case in focus: 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).

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).

Case in focus: 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.

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

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

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:

• 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.

1. 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.
 2. 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.
3. The complainant was, and the defendant was not, unlawfully detained at the time of the
relevant act.
4. 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.
5. 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.
6. 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.

The ability for these presumptions to be rebutted is limited.

Conclusive Presumptions

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).

Cases in focus: 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).

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
nondisclosure would not vitiate consent under section 74.
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)

Assault by Penetration

Section 2 provides:

1. A person(A) commits an offence if –

1. he intentionally penetrates the vagina or anus of another person (B) with a part of his
body or anything else,
2. the penetration is sexual,
3. B does not consent to the penetration, and 4. A does not reasonably believe that B
consents.

The mens rea of this offence is identical to that discussed above in relation to rape. The actus
reus differs in two respects. The first difference is that penetration can be with any part of the
defendant’s body or anything else.

The second actus reus element requires the penetration to be sexual.

Section 78 provides:

For the purpose of this Part (except section 71) penetration, touching or any other activity is
sexual if a reasonable person would consider that –

1. whatever its circumstances or any person’s purpose in relation to it, it is because of its
nature sexual, or
2. because of its nature it may be sexual and because of its circumstances of the purpose of
any person in relation to it (or both) it is sexual.

The requirements of section 78(a) are reasonably clear, in that where an act is clearly sexual in
nature. Indeed, even if the defendant’s intentions are entirely non-sexual, if the act itself is
clearly sexual, the act will satisfy section 78(a).

The application of section 78(b) is slightly more complex. Where the question as to whether the
act is sexual is ambiguous, the jury must consider firstly whether, in its view, the nature of the
act may make it sexual and, if it does, whether in the particular circumstances of it, it was in fact
sexual (R v H [2005] 1 WLR 2005).

Case in focus: R v H [2005] 1 WLR 2005

Sexual Assault

Section 3 provides:

1. A person (A) commits an offence if –

1. he intentionally touches another person (B),

2. the touching is sexual,
3. B does not consent to the touching, and
4. A does not reasonably believe that B consents

The only element of this offence which requires consideration is touching and a victim does not
necessarily need to be aware that they are being touched (R v Bounekhla [2006] EWCA Crim
1217). Nor does the victim’s body need to be touched (R v H [2005] 1 WLR 2005).

Causing a Person to Engage in Sexual Activity Without Consent

Section 4 provides:

1. A Person (A) commits and offence if –

1. he intentionally causes another person (B) to engage in an activity,

2. the activity is sexual,
3. B does not consent to engaging in the activity, and
4. A does not reasonably believe that B consents

This section also has the effect of making a defendant liable if the victim is forced by the
defendant to engage in sexual activity with somebody other than the defendant.

Sexual Offences against Children

Sections 5 to 15 contain offences related to children. The first of these relates to sexual activity
of the type set out in the adult offence with a child under the age of 13 (ss 5 – 8). Each of these
offences removes any notion of consent from the offence.

The second set of offences applies to children between the age of 13 and 16 (ss 9 -15). In these
offences, a defendant may be able to raise a defence if they are able to assert that they reasonably
believed the child to be aged 16 or over.

The main offences arising out of this particular case are relating to the Sexual Offences
Act 2003 and the Offences against the Person Act 1861.

Claire v Len (Sexual Offences Act 2003)

If it can be shown that Len acted unlawfully, his unlawful act would fall under s. 2 of the
Sexual Offences Act, assault by penetration.

The actus reus of the offence is penetration by the defendant of the vagina or anus of
another person with a part of the defendant’s body or anything else. The penetration
needs to be sexual and the victim does not consent to the penetration.

The mens rea of the offence is the intentional penetration and lack of reasonable belief by
the defendant that the victim consents.

In this case, Len had committed the actus reus (penetration of the vagina) of the offence.
It is, however, necessary that both actus reus and mens rea are present in order for the
offence to exist.

As mentioned above, lack of reasonable belief that the victim had consented, will amount
to the necessary mens rea. Therefore the issue of consent needs to be considered.

S. 74 states that valid consent is where a person agrees by choice, and has freedom and
capacity to make that choice.

In order to further examine whether Claire had consented and whether Len had a
reasonable belief that she had consented, the issue of voluntary intoxication needs to be
considered.

In R v Benjamin Bree [2007] 2 All ER 676 on appeal against conviction for rape, the
Court of Appeal emphasised that if a person has voluntarily consumed alcohol, but
remained capable of deciding whether or not to have intercourse, and while intoxicated
agreed to do so, this would not amount to rape.

If a defendant has the mens rea even while intoxicated, he will be guilty of the offence.
Furthermore, intoxication can only amount to a defence if it meant that the defendant did
not form the mens rea for the crime and if the crime is one of specific intent.

Crimes of specific and basic intent were defined In DPP v Majewski [1977] 2 WLR 623.
It stated that crimes of specific intent are those where the mens rea of the offence is
intention only, while crimes of basic intent are those where the mens rea includes
recklessness.

Voluntary intoxication can only be a defence to crimes of specific intent where the
defendant was so intoxicated that he did not form the mens rea of the offence. Therefore,
voluntary intoxication is no defence to any crime that can be committed recklessly.
In R v Heard [2007] 3 WLR 475 the Court of Appeal held that the offence under s. 3 was
one of basic intent, despite the fact that s. 3 requires proof that defendant’s touching was
“intentional”. Court of Appeal categorised the offence of sexual assault as an offence of
basic intent, in order to ensure that voluntary intoxication could not be available as an
excuse.

Following the decision in R v Heard, assault under s.3 is an offence to which voluntary
intoxication will not provide a defence. It would be safe to presume that the same
principle would be applied to offences under s. 2 as well.

Len could argue that he lacked the mens rea and that his honest belief was founded on the
fact that initially Claire reacted positively to his kiss. However, it could be argued that
kissing him back, does not necessarily mean that she consented to sexual penetration. He
would need to prove the lack of mens rea, and he cannot rely on voluntary intoxication as
defence. Therefore, if it can be shown that Claire had not consented and that Len had no
reasonable belief that she had, he would be guilty of the offence.

Len v Claire (Offences Against the Person Act 1861)

In order to establish the level of Claire’s culpability, both ss. 47 and 20 need to be
considered.

Under s. 47 the actus reus of the offence is defined as an assault which occasions actual
bodily harm.

In R v Miller [1954] 2 QB 282 it was stated that actual bodily harm means any injury that
might interfere with the health of the victim. Harm does not have to be serious and a
bruise would be sufficient.

Mens rea of s. 47 was established in R v Savage; R v Parmenter [1992] AC 714 where

the House of Lords held that intention or recklessness is adequate mens rea. It is not
required to prove that the defendant intended or was reckless as to the harm.

It could be argued that Claire has both actus reus and the mens rea of the offence. By
pushing Len (assault) she caused his fall (occasioning) and he suffered fractured skull
(actual bodily harm). However, due to the nature of his injury, s. 20 also needs to be
considered. The actus reus of the offence is to wound or inflict grievous bodily harm. A
wound requires both layers of the skin to be broken, and blood to be drawn.

The mens rea of s. 20 is determined in the word “maliciously” which is interpreted as

intentionally or recklessly.
In R v Savage; R v Parmenter it was established that the defendant only needs to intend
or be reckless. It is not necessary to prove that the defendant foresaw really serious harm
or the exact harm that occurred.

Claire could argue that when she pushed Len, she did not do it intentionally and whether
she foresaw any harm resulting from her assault would need to be considered. Both ss. 47
and 20 state that reckless conduct could amount to sufficient mens rea. The deciding
factor here would be the fact that Len suffered fractured skull after his fall. Although it
would be difficult to establish whether fractured skull would fall within the definition of
s. 20, it would nevertheless be a question for jury to decide whether such injury would
amount to really serious harm. If it could be shown that fractured skull is indeed
classified as a wound, then Claire would be guilty of an offence under s. 20. However, if
this type of injury does not fall within the s. 20, then she would be guilty of an offence
under s.47.

The fact that Claire was intoxicated would not be a valid defence, because both ss. 47
and 20 are basic intent offences and voluntary intoxication cannot be a valid defence for
such offences.

If it could be shown that Len had acted unlawfully and that he had the mens rea for the
offence of sexual penetration, she could argue the defence of self-defence. An individual
may use reasonable force to act in self-defence if he honestly believes there is a danger,
even if that belief is unreasonable.

Claire’s subsequent act, however, could amount to battery. The actus reus of battery is
infliction of unlawful personal violence on the victim. No injury is required for the
offence to exist. The mens rea for battery is to intentionally or recklessly inflict unlawful
violence.

Claire’s act of removing Len’s trousers and writing in lipstick “rapist” on his body, could
amount to battery. As there is no need for the defendant to suffer any injury, it could be
argued that she intentionally inflicted unlawful violence. She could not rely on voluntary
intoxication as defence.