Actus Reus Of Rape

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What is the actus reus of rape

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D penetrates the vagina, anus or mouth of V with his penis and V does not consent to the penetration.

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s79(3) SOA 2003

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Penis or vagina can be surgically constructed

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Degree of penetration

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SOA 2003 does not provide clarification so it is presumed the common law still applies

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Hughes (degree of penetration)

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slightest penetration is sufficient. In this case it was held that rape could occur despite the fact that the hymen had not been ruptured.

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s79(2) SOA 2003 (penetration)

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Penetration is a continuing act from entry to withdrawal. Consent can be revoked at any time. If the person continues to penetrate once the consent is revoked, they will be guilty of rape

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Ejaculation?

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Old SOA specified it was not necessary for ejaculation to occur but the SOA 2003 is silent on the matter.

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s76 SOA (lack of consent)

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Conclusive presumptions about consent. They cannot be rebutted:

(2)(a)Deception as to the nature or purpose of the act or (2)(b) impersonation of a person known to the victim (this requires a causal link between impersonation and consent)

Queries whether 'nature or purpose' would be construed more widely than common law which simply referred to deception as to the nature of the act.

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Williams (old law on conclusive presumption)

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D convicted of rape where he induced women to submit to sex by claiming he was performing a surgical operation.

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Flattery (old law on conclusive presumption)

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Singing master had sex with one of his pupils telling her it was method to improve singing. Deception of the nature of the act so he was convicted.

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R v Brown (conclusive presumptions)

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Nature of sex is different with a diseased person compared to a healthy person but this does not mean it falls into rape category because the act remains a consensual act.

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R v Jheeta (conclusive presumptions)

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D met complainant in college and in 2002 they started a consensual sexual relationship. Few months later she started receiving text messages and tells Jheeta that she is scared. He was in fact responsible for the messaged but he told C that he would protect her. The messages continue and she wants to go to the police. Jheeta says he will lodge a complain on her behalf. C starts receiving messages from the 'police'. This goes on for 3 years. Whenever the claimant tried to break up with Jheeta, a text message appears from the police telling her to have sex with Jheeta or she might be fined. Eventually the whole scam is uncovered and Jheeta admits that C only had sex with him because of the texts and so she did not truly consent. Jheeta was advised to plead guilty as the scenario fell into s76 SOA 2003. He was sentenced to 8 years. He appealed claiming he was wrongly advised. His appeal was allowed because in part it didn't fall into s76/ This case tells us that the court are keeping a very narrow definition of 'nature and purpose'. This is to recognise that men 'will often lie to get women into bed so unless the lie is so bad it will not go to s76.'

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R v Devonald (conclusive presumptions)

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Claimant was a 16 yr old who had a relationship with D's daughter. Relationship broke down and D believed C had mistreated his daughter. So D pretends to be a young woman via the internet and befriends C. He persuaded C to masturbate in front of a webcam. Prosecution argued that C had masturbated for sexual gratification of a young woman and that because in reality he was masturbating for D (an old man) this fell within s76. the court surprisingly agreed to this argument

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R v B (conclusive presumption)

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Hallet J said Jheeta was to be preferred to Devonald case and that 'purpose' should not be defined too widely. In this case A met B through a social networking site pretending to be G. B sent topless photos of herself to A at his request and A then threatened to post them online if B did not engage sexual acts over webcam. B gave into A's demands. Eventually A is charged with caysing somebody to enegage in sexual activity without consent and prosecution relied on s76 SOA 2003 saying A had deceived B as to the purpose of the act. Applying Jheeta, the court said s76 was not applicable. In trial of first instance A was convicted but appealed successfully. At retrial the court examined both Devonald and Jheeta and highlighted the dangers of taking a broad approach to the presumptions. Instead they said s74 could have been applicable.

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s76(2)(b) (conclusive presumptions)

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Extended previous law to include a relationship of any length. It simply requires impersonation of someone known personally to the victim. You have to show the person was impersonating someone personally known to the victim and for this reason the victim slept with the person. Does not include impersonation of certain characteristics or skills

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s75 SOA 2003

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Evidential presumptions as to consent. defendant can rebut these but he will be faced with the evidential burden. includes things like unlawful detention, asleep/unconsciousness, inability to communicate, administering a substance to sutpify or overpower the claimant.

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Threats of violence (evidential presumption?)

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SOA 2003 repealed and did not replace s2 SOA 1956 offence of procuring sexual intercourse by threats which covered threats of less than physical violence.

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Asleep or otherwise unconscious (evidential presumption)

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If complainant is severely intoxicated but remains consciousness the presumption does not arise.

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Inability to communicate due to physical disability

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Unclear why this is included. At common law there was no requirement that absence of consent had to be communicated. SOA 2003 has specific provisions to deal with those with mental disorders who are unable to communicate

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Meaning of consent (s74 SOA 2003)

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In cases where the conclusive presumptions do not apply or where an evidential presumption is rebutted, the issue of consent will be resolved by looking at the meaning of consent under s74 which says 'a person consents if agrees by choice and has the freedom and capacity to make that choice.'

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olugboja (meaning of consent)

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D and his friend met V and K at a disco. They offer to give the girls a lift home but instead of bringing them home, the defendants bring them to another house. They refuse to enter and D goes inside and the girls try to walk away. The co-accused (L) raped V and then brought the girls back to the house. Then L drags K into a bedroom. D tells V he is going to have sex with her and she says 'your friend raped me outside, please leave me alone'. D tells V to take off her trousers which she does and then D has sex with her. At trial of first instance D is convicted of sex with v but on appeal argues that V taking off her trousers V at least gave the impression of consent and that as there was no threats of violence of serious injury, consent could not be negated. CA says rape is not limited to cases where there has been fear or fraud an that consent is a common word which is best left to the jury. They said that every consent involves a submission but it by no means follows that every submission involves consent. they said in this case V had submitted but not consented to sex.

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Dayle (meaning of consent) (new law)

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D had used violence against his ex partner. He held her head under water and tied her up before demanding sex. B refused and protested until he penetrated her and then she stopped resisting and said she just wanted it over. He was convicted of rape and appealed. CA upheld his conviction saying it was clear that there was no consent. It did recognise, however, that in some cases a jury would need guidance as to the distinction between reluctant but free excerise of choice and unwilling submission due to fear or worse consequences.

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R v C (meaning of consent)

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C had a mental disprder which often manifested itslef in episodes of impulsive aggressive behaviour, depression and manic episodes. A befriends C and gave her crack cocaine. They he made her perform oral sex on her and a co-defendant. S30 but what is said about consent is relevant to rape and sexual assault. A argued that B knew and understood the sexual nature of the act and willingly agreed to perform it. In previous cases, this would have worked as a defence. But the HoL took a more protective approach they said that a mentally disordered person may understand the sexual nature of an act but may not be able to weigh the information in the balance and be able to make a choice.

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R v Dougal (meaning of consent)

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C said she was so drunk that she could not remember whether she gave consent. She did know that she would not have consented to having sex in a corridor. Prosecution decided not to proceed with a case because the could not prove that c had not consented. Judge tells jury that a drunken consent is still consent so directed the jury to find the defendant not guilty. Decision promoted lots of coverage and caused g'ment to reconsider an amendment to define consent more clearly. Also judge never considered whether C was so intoxicated that she lacked the capacity to consent.

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R v Bree (meaning of consent)

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19 yr old claimant went out one night and had 2 pints of cider and approx 4-6 vodka redbulls. She went home, vomited and then recalls A having oral and penetrative sex with her. She says she did not consent but did not know how to say no. She merely curled into a ball whilst it was happening. A said yes she was intoxicated but lucid enough to consent and that he reasonably believed she had consented. Court recgonised the jury needed guidance and said 'the proper construction of s74 SOA 2003 Act...leads to clear conclusions, If through drink the complainant has lost her capacity to choose...she is not consenting...however, where the complainant had voluntarily consumed even substantial amounts of alcohol, but nevertheless remained capable of choosing...and in drink agrees to do so, this would not be raped.' Court also made the point that capacity to consent can be lost well before loss of consciousness.

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Hysa (meaning of consent)

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complainant had drank half a bottle of vodka and taken cannacbis. She had separated from her friends and ended up in the car of strangers. One of them raped and digitally penetrated her. In trial, claimant said she didn't consent but couldn't remember what she said. A said she had the capacity to consent and based his argument on the fact that she rejected advances from the other men in the car. He also said if she could not remember whether she had given consent then the claim must fail. Court rejected this

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Kamki (meaning of consent)

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Person can still have capacity to consent when they have had a lot to drink. A state of incapacity through drink may however, be reached before a complete loss of consciousness arises.

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Seedy Tambedou (meaning of consent)

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claimant said she would not have had sex with A but her intoxicated condition meant she was unable to say categorically that she didn't consent. Again D tried to enter submission of no case to answer and the CA dismissed this. Court made the point that the jury are entitled to consider issue of absence of consent and distinguish it from absence of memory. Claimant's evidence that she could not remember was insufficient to remove it from the jury.

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R v Kirk (freedom to consent)

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Economic coercion: claimant was a 14yr old girl who had been previously sexually abused from by Kirk. She was homeless and hungry so went to Kirk's office and waits until it is empty. They then have sex and he gives her £3.25 so she can buy a sandwich. On the facts and in light of the abuse the court said she did not consent.

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C (freedom to consent)

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groomed/frightened into submission: Jury had to consider whether D had sexually abused B between 5 and 15. There was also a charge that D had raped B once she had turned 16. court made it clear hat if the jury found that D had abused B as a girl then it was open to them to conclude that the sexual intercourse at 16 was non consensual as her consent would have been given due to the dominance and control that A had exerted over her.

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R v Dica; R v B (freedom to consent)

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Both these cases made it clear that HIV transmission cases would§ not constitute rape

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R v McNally (mistake/deception as to a person's identity or characteristics)

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Read case. Justine McNally was born a female but she identified as a male. McNally joined a social network site and listed her status as male. She commenced an online relationship with B who was unaware of McNally's transgender status. They eventually meet after a number of years and McNally digitally penetrated B's vagina on a number of occasions. B's mother becomes suspicious and confronts McNally who admits her transgender status. McNally is charged with 6 counts of penetration (s2 SOA 2003). It was recognised that in this case, in a physical sense, penetration of the vagina is the same whether committed by a male or female but the sexual nature of the act is different if the claimant is deceived it not thinking the person performing the act is male. This deprives the complainant the freedom to make a choice. The judge throughout the case claimed the case was an act of active dishonesty rather than non-disclosure. But some argue this is a fundamental misunderstanding of transgender people.

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R v Linekar (mistake/deception)

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Victim was a prostitute who was approached by the defendant. They agreed they would have sex for a sum of money so they did but then he refused to pay. At the time it was argued there had been a deception as to the nature of the act (this was ultimately rejected). You have to wonder whether s76 could have been pushed for. Jheeta and R v B suggest no but the other cases suggest otherwise

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Assange v Swedish Prosecution Authority (mistake/deception)

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Woman agreed to have sex with Assange provided he wore a condom. He didn't wear it or removed it/tore it in the act. one of the grounds you can extradite someone is if they have committed an offence in UK and Sweden. Court said where the complainant makes it clear she will only have sex using a condom and D proceeds to have sex without one, it would be possible to charge rape. This would fall under s74 as freedom to consent is affected bu the decision to ignore the condition.

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R(F) v DPP (mistake/deception)

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Judicial review of a CPS decision not to prosecute. B consented to sex provided A withdrew prior to ejaculation. A intentionally ejaculated inside B and court said a rape charge should have been persued as it fit firmly under s74.