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One of the driving forces behind the creation of the Sexual Offences Act 2003 was the low conviction rate on rapists. In 1999 9,008 rape cases were reported and only 1 in 13 resulted in a conviction . Within this essay I will discuss whether or not the changes introduced by the Sexual Offences Act 2003 add greater clarity to the area of rape. In order to fully understand this question one must first define rape. The standard definition of rape is “unlawful sexual intercourse with a woman who at the time of intercourse does not consent . I say standard because with each Sexual Act the definition of rape has changed in some way. When rape was first introduced as a statutory offence in the Offences Against the Person Act 1861 it simply stated that ‘it is a felony to rape a woman . ‘ The Sexual Offences Act 2003 now defines rape as the ‘intentional penetration of the vagina, anus, or mouth of another person who does not consent . ‘ Each Sexual Offences Act attempts to further clarify the area of rape. The main change in the Sexual Offences Act 2003 has to deal with the definition and the area of consent.
The Sexual Offences Act of 1956 elaborates to a great extent on the area of rape; it goes more in depth where rape is concerned than the Offences Against the Person Act 1861. The Sexual Offences Act 1956 states: “Rape of a man or woman (1)It is an offence for a man to rape a woman or another man. (2)A man commits rape if— (a)he has sexual intercourse with a person (whether vaginal or anal) who at the time of the intercourse does not consent to it; and (b)at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it. 3)A man also commits rape if he induces a married woman to have sexual intercourse with him by impersonating her husband. (4)Subsection (2) applies for the purpose of any enactment. ” Like Offences Against the Person Act 1861, this act also failed to clarify or to give further direction on the matter of consent. Thus, it was still up to the “judiciary to determine the constituent elements and develop the factors that might vitiate an apparent consent. ” In 1975 the case of DPP v Morgan prompted Parliament to amend this act in order to attempt to clarify the area of consent.
The amendment to this act is found in the Sexual Offences Act 1976. This act states: (1)For the purposes of section 1 of the M1Sexual Offences Act 1956 (which relates to rape) a man commits rape if— (a)he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and (b)at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it; and references to rape in other enactments (including the following provisions of this Act) shall be construed accordingly. 2)It is hereby declared that if at a trial for a rape offence the jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed. ” In the case of DPP v Morgan the husband invited three friends over to have intercourse with his wife. He told them that she might be acting like she was resisting but she was actually just role playing.
Though the wife struggled against them they still had sex with her because they were under the belief that she had consented. They were tried with rape. The judge’s remark to the jury simply was if you believe that the wife did not consent then the defendants belief that she did indeed consent is not a defense. They were all convicted of rape. Due to the confusion caused by this case section 1(2) (as shown above) of the Sexual Offences Act 1976 was created. This gives a definition of mens rea in regards to consent .
Although this act tried to further clarify consent and the meaning of rape there were still some tweaking that had to be done to it. For instance it defines rape but it doesn’t establish the need to show that there was “force, fear, or fraud affecting the woman’s consent. ” The Jury was just instructed to give consent its ordinary meaning. That being stated this act also failed to provide a legal definition of consent. All of these changes were made in the Sexual Offences Act 2003. The Sexual Offences Act 2003 states: ” Rape (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. (3) Sections 75 and 76 apply to an offence under this section. (4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life. ” Although these changes were made does it actually add clarity to the area of rape?
The first change that must be mentioned is the inclusion of oral as a point where penetration can occur. This was included because it was decided that oral sex was just “as abhorrent demeaning and traumatizing a violation and equally, if not more psychologically harmful than vaginal and anal rape . ” Secondly, section 1(1) of this act makes rape gender specific. Since it states that penetration must be done with a penis then only males can commit rape. Thus, women cannot legally be charged with rape but if they act as an accomplice of a male rapist then they can be charged with “causing a person to engage in sexual activity “.
Although this section shows that a woman cannot be a rapist section 79(3) which state, “references to a part of the body include references to a part surgically constructed (in particular, through gender reassignment surgery), ” is a deviation of this rule this shows that if it is a transsexual, who committed penile surgery then she can be charged with rape, for rape is the penetration of the penis, whether it is a surgically constructed penis or a natural one. It does not matter the gender of who is raped or that of the rapist .
Those with surgically constructed vaginas can also be raped as per R v Matthews . Thirdly, the actus reus for rape is no longer unlawful sexual intercourse. In the previous Sexual Acts 1956 and 1976 unlawful intercourse was the actus reus. Unlawful meant sexual intercourse outside of marriage. This was discovered to be a common law action as per R v R , and was abolished. Now a husband can rape his wife. The actus reus for rape according to the Sexual Offences Act 2003 is penetration . In accordance with this act in order for it to be rape several elements must be meet.
Firstly, it has to be proven that the vagina, anus or mouth was intentionally penetrated by the defendant. The mens rea for rape is the intentional penetration. Once penetrated it is thought that intent is there unless the penetration is minimal. In that case it can be argued that the defendant only “meant to stay on the outside” . Intoxication cannot be used as a defense as per R v Woods , due to the fact that rape is still a crime of basic intent. Before this act the actus reus for rape was unlawful intercourse (outside marriage)it is now penetration.
Section 79(2) defines penetration as “a continuing act from entry to withdrawal ,” as per Cooper v Schaub . For it to be penetration full entry is not necessary. Thus, the vagina includes the vulva this is explained in section 79(9), which simply states that “Vagina includes vulva ” As per R v Tarmohammed the penis should be removed if at any point consent is withdrawn. This brings me to my next point that of consent. Secondly, it has to be determined whether or not the victim gave consent. Section 74 defines consent as ” a person freely agreeing by choice and who has the freedom and capacity to make that choice . The phrase capacity to make a choice is a tricky phrase especially if one is dealing with a person with a mental disorder. To help clarify this in the Offences related to persons with a mental disorder section 30(2) is used. This states: “B is unable to refuse if – He lacks the capacity to choose whether to agree to the touching (whether because he lacks sufficient understanding of the nature or possible consequences of what is being done, or for any other reason), or he is unable to communicate such a choice to A. Therefore if one does not understand the complete nature of the act then they cannot consent as per R v Williams . More clarification on whether or not a woman has consented is given by sections 75 and 76 of the Sexual Offences Act 2003. These sections each contain a presumption about consent. Section 75 contain evidential presumption which may be challenged by the defendant, whereas, section 76 cannot be challenged as it is conclusive presumptions . The evidential burden is not a burden of proof; it simply means that the defendant needs to provide some evidence that supports his case.
Section 75 states: “(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, ” If (a), (b), and (c) are proved by the prosecution then it can be assumed that the victim did not consent to the act nor did the offender reasonably believe that he had consent. If the judge does not think that the evidence is enough to raise an issue then the jury is instructed to look at section 75(2) . This states: “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. When looking at sections 75(2)(a) and (b) violence is not given a legal definition here but uses its normal definition. Violence is “any action using physical force intended to hurt, damage, or kill . ” The one who does the act does not have to be the one that used violence in coercing the victim. In regards to section 75(2)(d) if one is asleep they then cannot give consent to the act as per R v Larter and Castleton . When dealing with section 75(2)(e) if one cannot communicate it may be due to a physical or mental disability. In regards to section 75(2)(f) if the offender knew that the substance used would render the victim ‘overpowered’ then he can be charged with rape. The conclusive presumptions found in section 76 are: (1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed— (a) that the complainant did not consent to the relevant act, and (b) that the defendant did not believe that the complainant consented to the relevant act. (2) The circumstances are that— (a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act; (b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant. This simply means that if the offender intentionally deceives the victim in regards to what the act is which is taken place or to who he is then the consent is not valid. Thirdly, it has to be proven that the offender did not reasonably believe that the victim consented. Consent of honest but mistaken belief is not available where “due to self-induced intoxication, there was recklessness as to consent, or where D failed to take all reasonable steps that might be expected in the circumstances. ” In the case of DPP v Morgan it was decided that a person would not be guilty of rape if they had an honest belief that the victim did indeed consent.
With the Sexual Offences Act section 1(2) it is no longer as simple as that. Section 1(2) states: “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. ” The offender may in fact have made an honest mistake in regards of consent but it must be decided if the mistake was a reasonable one. This is left up to the jury to determine using a subjective approach. This means that the jury must look at all the facts including the offender characteristics, thus, giving a subjective view. In conclusion, it is my belief that the Sexual Offences Act 2003 does add a greater clarity to the area of rape.
When one look at the previous Sexual Acts and compare them with the current act it is easy to see the changes that has been made Not only can a biological male commit the act of rape but now a transgender individual can as well. Due to this act rape now entails oral sex and consent is given a legal definition. Section 75 and 76 of the act helps to further clarify the area of consent. Thanks to the changes made in this act the elements for rape are now more defined. ? BIBLIOGRAPHY Card, Richard (2008) Card, Cross, and Jones Criminal Law. New York, Oxford University Press Cooper v Schaub [1994] Crim LR 531 DPP v Morgan [1976] A. C. 182 Martin ,A, Elizabeth. ed)(2006) Oxford dictionary of Law. New York, Oxford University Press Office of Public Sector Information. The UK Statute law Database. (online) available from: http://www. opsi. gov. uk/ (Accessed 3rd April 2009) R v R [1993] 1 All ER 747 R v Larter and Castleton [1995] Crim LR 75 R v Tarmohammed [1997] Crim LR 458 R v Williams [1992] All ER 322 R v Woods (1981) 74 Cr App R 312 Soanes, Catherine. (ed)(2007) Oxford English Mini Dictionary. New York, Oxford University Press Stevenson, Kim. et al (2004) Blackstone’s Guide to The Sexual Offences Act 2003. New York, Oxford University Press Tomaselli, Sylvana. , Porter Roy (ed)(1986) RAPE. New York, Basil Blackwell Ltd.