AIMS AND OBJECTIVES
After reading this chapter you should be able to:
Understand the law of rape
Understand the law of assault by penetration, sexual assault, incest and other sexual offences
Analyse critically the law on sexual offences
Apply the law to factual situations to determine whether there is liability for rape or for another sexual offence
The law of sexual offences in England and Wales has undergone radical reform in the last 10 years. The reform process can be traced back to the then Home Secretary’s announcement in January 1999 that a major review of the law governing sex offenders was to take place. An independent review body was set up and its findings, contained in a document entitled Setting the Boundaries — Reforming the Law on Sex Offenders, were published in July 2000. The opening paragraphs of the document explain why the review was necessary:
‘Why did the law need reviewing? It is a patchwork quilt of provisions ancient and modern that works because people make it do so, not because there is a coherence and structure. Some is quite new — the definition of rape for example was last changed in 1994. But much is old, dating from nineteenth century laws that codified the common law of the time, and reflected the social attitudes and roles of men and women of the time. With ithe advent of a new century and the incorporation of the European Convention of Human iRights into our law, the time was right to take a fresh look at the law to see that it meets ithe need of the country today.’
At the time of the review, ‘rape’ was defined as penetration of the vagina or anus of another person without consent (s 1(1) of the Sexual Offences Act 1956 (as amended by the Criminal Justice and Public Order Act 1994)). Other forms of non-consensual sexual contact were dealt with under an offence called ‘indecent assault’ (contrary to ss 14 and 15 of the Sexual Offences Act 1956). The actus reus of the latter crime covered a very wide range of activities:
oral sex (McAllister (1997) Crim LR 233)
penetration of the vagina with D’s hand (Boyea (1992) Crim LR 574)
spanking (Court (1989) AC 28)
stroking a woman’s breasts (Tabassum (2000) 2 Cr App R 328)
stroking a woman’s lower leg (Price (2003) EWCA Crim 2405; The Times, 20th August 2003).
In addition to the width of the offence, there was also sometimes difficulty in establishing that an assault had been ‘indecent’. According to Lord Ackner in Court (1989), it was a matter for the jury to decide whether ‘right-minded persons would consider the conduct indecent or not’. Setting the Boundaries — Reforming the Law on Sex Offenders sets out the Review Body’s position on the law of sexual offences as follows (paragraph 0.9):
that rape be redefined to include penetration of the mouth, anus or female genitalia by a penis;
a new offence of sexual assault by penetration to deal with all other forms of penetration of the anus and genitalia;
rape and sexual assault by penetration should be seen as equally serious, and both should carry a maximum sentence of life imprisonment;
a new offence of sexual assault to replace other non-penetrative sexual touching now contained in the offence of sexual assault.’
After a consultation period culminating in March 2001, in November 2002 the Government published a White Paper called Protecting the Public — Strengthening Protection against Sex Offenders and Reforming the Law on Sexual Offences setting out its proposals for reform. The Government clearly endorsed the findings of the independent review body, as this extract shows (Overview, paragraphs 8–9):
‘ The law on sex offences, as it stands, is archaic, incoherent and discriminatory. Much of it is contained in the Sexual Offences Act 1956, and most of that was simply a consolidation of 19th century law. It does not reflect the changes in society and social attitudes that have taken place since the Act became law, and it is widely considered to be inadequate and out of date. While some piecemeal reform has taken place over the years, we have now undertaken a comprehensive review of the law so that it can meet the needs of today’s society.’
The proposed reforms were put to Parliament and in due course the Sexual Offences Act 2003 was passed, the main provisions of which entered into force on 1st May 2004.
Section 1(1) of the Sexual Offences Act 2003 defines ‘rape’ in the following terms.
‘1(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.’
Section 1(2) provides that ‘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’.
Actus reus elements
Penetration of the vagina, anus or mouth of another person, V, with the penis.
Lack of consent by V.
Mens rea elements
Intent to penetrate V’s vagina, anus or mouth.
Lack of reasonable belief in V’s consent.
Summary of changes
Penetration of the mouth becomes rape.
Genuine belief that V was consenting is no longer a good defence. The belief must be reasonable.
Prior to the Criminal Justice and Public Order Act 1994, rape could only be committed by penetration of V’s vagina (it followed that only women could be the victims of rape). The definition of ‘rape’ was expanded in 1994 to include penetration of the anus, which meant that prosecution for male rape was possible for the first time (prior to 1994, the non-consensual anal penetration of either a man or woman would have been charged as buggery). Following the 2003 Act, the non-consensual penetration of either the vagina, anus or mouth amounts to the actus reus of rape. The one constant feature over this time has been the requirement that the penetration be by D’s penis. The non-consensual penetration of V’s vagina or anus by some other body part, or anything else, may now be charged under s 2 of the 2003 Act, as ‘assault by penetration’ (see section 12.2 below). Section 79(3) of the 2003 Act states that ‘references to a part of the body include references to a part surgically constructed (in particular, through gender reassignment surgery)’. This would allow:
a post-operative female-to-male transsexual to commit rape using an artificially created penis
a post-operative male-to-female transsexual to be the victim of rape if her artificially created vagina were to be penetrated by D’s penis
One of the first cases under s 1 to reach the Court of Appeal under the 2003 Act involved the extended definition of rape, that is, penetration of V’s mouth with D’s penis. In the case, Ismail (2005) EWCA Crim 397, Lord Woolf CJ noted that ‘the fact that this was oral rape does not mean that it is any less serious than vaginal or anal rape’.
Ismail (2005) EWCA Crim 397
D, aged 18, approached V, aged 16 and a virgin, who was standing near a phone box in Sheffield. V decided to walk to her friend’s house and D accompanied her. When they reached a deserted path through grass verges D suddenly grabbed V from behind and pulled her onto the verge. He touched her vagina (which led to a separate conviction of sexual assault under s 3, see below) and then forced V to suck on his penis. He threatened to stab her if she did not comply and slapped and punched her about the face until he ejaculated into her mouth. Afterwards he stroked her hair and apologised. After D was arrested and charged he claimed consent but V had recorded the whole incident on her mobile phone. D changed his plea to guilty and his appeal (against sentence) was dismissed.
Section 79(2) of the Sexual Offences Act 2003 states that ‘penetration is a continuing act from entry to withdrawal’. This gives statutory effect to the Privy Council ruling in Kaitamaki (1984) 2 All ER 435, where the Court held that D commits rape if, having penetrated with consent, or believing he has consent, D declines to withdraw on consent being revoked, or on realising that V does not consent. This was confirmed by the Court of Appeal in Cooper and Schaub (1994) Crim LR 531. V had allegedly been raped by the two defendants, whom she had met in a pub and later had sex with. After retiring to consider a verdict, the jury asked the judge: ‘If we find that initially there was consent to intercourse and this was subsequently withdrawn and intercourse continued, does this by law constitute rape?’ The judge answered in the affirmative and the jury convicted. Although the convictions were quashed on appeal, the Court of Appeal confirmed the correctness of the judge’s direction on the point of law.
An essential element in rape is the absence of consent to penetration. As rape is an indictable offence, this is a matter for the jury to decide. Early authorities emphasised the use of force that the penetration had to be against V’s will. However, it is now clear that the lack of consent may exist with or without force being used. In Olugboja (1982) QB 320, D contended that rape required the submission of the victim, induced by force or the threat of force. He had been convicted of raping a 16-year-old girl who had not offered resistance nor cried for help, because she was too frightened. The Court of Appeal dismissed the appeal. Dunn LJ said:
‘It is not necessary for the prosecution to prove that what might otherwise appear to have been consent was in reality merely submission induced by force, fear or fraud, although one or more of these factors will no doubt be present in the majority of cases of rape … [The jury] should be directed that consent, or the absence of it, is to be given its ordinary meaning and if need be, by way of example, that there is a difference between consent and submission.’
Further guidance on the distinction between ‘consent’ and ‘submission’ was provided in Doyle (2010) EWCA Crim 119.
Doyle (2010) EWCA Crim 119
D had been convicted of raping his 17-year-old girlfriend, V, after she said that they were no longer in a relationship and that she did not want to have sex with him. V’s testimony at trial was that D had forced her to have sex. Initially she had protested ‘but once he had succeeded in penetrating her she ceased to resist because she thought it would only get worse if she did’. D appealed against his conviction, arguing that the trial judge had failed to explain to the jury the distinction between ‘submission’ and consent freely given by choice. The Court of Appeal upheld the conviction.
Pitchford LJ said that:
‘There are circumstances in which the jury may well require assistance as to the distinction to be drawn between reluctant but free exercise of choice on the one hand, especially in the context of a long term and loving relationship, and unwilling submission to demand in fear of more adverse consequences from refusal on the other.’
However, he added, ‘this was not one of those cases’. Pitchford LJ’s reference to the ‘free exercise of choice’ being the key defining characteristic of consensual sex is based on the statutory definition of ‘consent’ found in the SOA 2003. Section 74 states that a person ‘consents if he agrees by choice, and has the freedom and capacity to make that choice’. V may appear to be consenting — perhaps through fear that physical resistance, struggling, screaming or shouting for help may provoke D into violence — and yet not actually be doing so. This was demonstrated vividly in McFall (1994) Crim LR 226. D kidnapped his former girlfriend, V, at gunpoint and had driven her from Leeds to a hotel in Hull, where they had sex. V faked orgasms throughout the intercourse, so that it may have appeared that she was consenting. However, D’s rape conviction was upheld. Taking into account the fact that D had kidnapped V with a gun (although in fact an imitation, it looked real, and he had told her that it was loaded), there was sufficient evidence that V’s apparent consent was not genuine in order for the jury to convict.
In AC (2012) EWCA Crim 2034, the Court of Appeal confirmed that there is a distinction to be drawn between ‘apparent’ consent to sexual activity and ‘real’ consent. If D has sex with V whose consent is only ‘apparent’ then the actus reus of rape has been committed.
AC (2012) EWCA Crim 2034
D was charged with 18 sexual offences against his stepdaughter, V, who was 18 years younger. The charges related to incidents over a period of 20 years, starting when V was aged around 5 and ending when she was around 25. At trial, D’s case was that there had been no sexual activity between them until V was 16 and that thereafter they were in a consensual sexual relationship. The prosecution, however, argued that D, having abused and sexually controlled V when she was a child, continued to abuse, dominate and control her after her 16th birthday. The jury convicted and the Court of Appeal upheld the convictions. Lord Judge CJ said:
‘Once the jury were satisfied that the sexual activity of the type alleged had occurred when [V] was a child, and that it impacted on and reflected [D’s] dominance and control over [V], it was open to them to conclude that the evidence of apparent consent when [V] was no longer a child was indeed apparent, not real, and that [D] was well aware that in reality she was not consenting.’
The meaning and scope of s 74 was examined by the Court of Appeal in Jheeta (2007) EWCA Crim 1699; (2008) 1 WLR 2582.
Jheeta (2007) EWCA Crim 1699; (2008) 1 WLR 2582
D and V had been in a sexual relationship but, when V indicated that she wished to end it, D sent her a series of anonymous threatening text messages. These messages were in fact sent by D but V was unaware of this fact. Instead, V was so distressed that she sought protection against those making the threats from D. This allowed him to prolong their sexual relationship for far longer than would otherwise have been the case (several years, in fact). Eventually the whole ‘complicated and unpleasant scheme’, in the words of Sir Igor Judge, was discovered and D was charged with and convicted of several rapes. The Court of Appeal upheld the convictions, pointing out that V’s apparent consent ‘was not a free choice, or consent for the purposes of the Act’.
You will recall that in the cases of Dica (2004) EWCA Crim 1103 and Konzani (2005) EWCA Crim 706, examined in Chapter 8, the Court of Appeal imported a doctrine of ‘informed consent’ into the law of non-fatal offences. The result of these cases is that, if D knows that he is HIV positive, has unprotected penetrative sex with V without informing them of his condition, and transmits the virus, this can lead to a conviction under s 20 of the Offences Against the Person Act 1861 (inflicting grievous bodily harm (GBH)). The justification for this is that V’s consent to have sex with D does not extend to consent to the risk of contracting a potentially fatal illness. The reason for repeating these principles here is that the Court of Appeal was asked, in B (2006) EWCA Crim 2945; (2007) 1 WLR 1567, whether such facts could lead to a conviction of rape. The Court answered ‘no’.
B (2006) EWCA Crim 2945
In the early hours of the morning, D and V had sex in the street outside a nightclub where they had just met. Subsequently, V made a complaint of rape. D was arrested and informed the custody officer that he was HIV positive, a fact which he had not disclosed to V prior to their having sex. He was charged with and convicted of rape. He appealed, submitting that the judge was wrong in directing the jury that his HIV status was relevant to whether V had the ‘freedom and capacity’ to consent to sex in the absence of that knowledge. The Court of Appeal quashed the conviction.
Latham LJ stated:
‘Where one party to sexual activity has a sexually transmissible disease which is not disclosed to the other party, any consent that may have been given to that activity by the other party is not thereby vitiated. The act remains a consensual act. However, the party suffering from the sexually transmissible disease will not have any defence to any charge which may result from harm created by that sexual activity, merely by virtue of that consent, because such consent did not include consent to infection by the disease.’
Presumptions about consent
Sections 75 and 76 of the Sexual Offences Act 2003 apply to the offences in s 1 (rape), s 2 (assault by penetration), s 3 (sexual assault) and s 4 (causing a person to engage in sexual activity without consent).
Section 75 of the 2003 Act is headed ‘Evidential presumptions about consent’.
‘75(1) If in proceedings for an offence to which this section applies it is proved —
(a) that [D] did the relevant act,
(b) that any of the circumstances specified in subsection (2) existed, and
(c) that [D] knew that those circumstances existed,
[V] 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 [D] is to be taken not to have reasonably believed that [V] 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 [V] or causing [V] 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 [V] to fear that violence was being used, or that immediate violence would be used, against another person;
(c) [V] was, and [D] was not, unlawfully detained at the time of the relevant act;
(d) [V] was asleep or otherwise unconscious at the time of the relevant act;
(e) because of [V]‘s physical disability, [V] would not have been able at the time of the relevant act to communicate to [D] whether [V] consented;
(f) any person had administered to or caused to be taken by [V], without [V]’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling [V] to be stupefied or overpowered at the time of the relevant act.’
One of the evidential presumptions in s 75 is the situation where V is ‘unlawfully detained’ (s 75(2)(c)), although the Court of Appeal did not need to refer to that section in B (2006) EWCA Crim 400. In the words of Swift J, D forced V to ‘put her wrists into some dog leads, which he secured to the bedposts. He tied her ankles with a belt and forced open her legs. He pulled down her pyjama bottoms and her thong to her ankles. He then took off his own clothes and said, “You have a choice, either up the front or up the back”. He turned her over and committed an act of anal rape.’
Section 75(2)(d) refers to the situation in cases such as Larter and Castleton (1995) Crim LR 75. There, D had sexual intercourse with V, a 14-year-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 consent. The Court of Appeal upheld D’s 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 an ‘evidential presumption’ that V was not consenting, requiring D to prove that she was consenting.
Section 75(2)(d) was invoked in Ciccarelli (2011) EWCA Crim 2665; (2012) 1 Cr App R 15, a case involving sexual assault, contrary to s 3 SOA 2003 (for detailed explanation of this offence see section 12.3, below).
Ciccarelli (2011) EWCA Crim 2665; (2012) 1 Cr App R 15
D was at a party with several people including his girlfriend and V, who was very drunk. At one point, V fell asleep and D, the girlfriend and V took a taxi back to D’s flat, where V was to spend the night in the spare room. During the night, D got up and went into the room where V was asleep. There, he lay down next to her, kissed her on the face, and rubbed his penis against her bottom. He then tried to get on top of her at which point she woke up and shouted at him to get off, which he did. D was charged with sexual assault.
The trial judge told the jury that the evidential presumption in s 75(2)(d) had been created by the fact that V was asleep at the time of the touching, D knew that V was asleep and D had committed the relevant act of touching V in a sexual way. This meant that it was rebuttably presumed both that V was not consenting and that D had no reasonable belief in V’s consent. Furthermore, the trial judge ruled that there was no evidence to rebut the presumption. At that point D changed his plea to guilty and appealed. He contended that he reasonably believed that V was consenting to the touching, despite the fact that she was asleep. The Court of Appeal dismissed his appeal, holding that once one of the evidential presumptions was raised, it could only be rebutted by evidence. On the facts there was no evidence, other than D’s own testimony.
Section 75(2)(f) refers to the situation in cases such as Camplin (1845) 1 Den 89, where D was convicted of rape after rendering a woman insensible by plying her with alcohol before having intercourse. On these facts, there would now be an ‘evidential presumption’ that V was not consenting, requiring D to prove that she was consenting. This situation is all too familiar in the 21st century, with incidents involving the use of ‘date rape’ drugs. Powerful sedatives designed to alleviate sleeping disorders are available in tablet form and can be easily crushed and dissolved in liquid. Because they are usually tasteless and odourless, they can be slipped into V’s drinks in a bar or nightclub without her knowledge, in order to render her unconscious or semi-conscious during sex.
The evidential presumption does not apply where V has become drunk or drugged or otherwise intoxicated of his/her own free will, as opposed to through use of force or some subterfuge on the part of D. Nevertheless, if D takes advantage of V whilst he/she is in this condition, this could still be rape as demonstrated in the pre-2003 Act case of Malone (1998) EWCA Crim 1462; (1998) 2 Cr App R 447.
Malone (1998) EWCA Crim 1462; (1998) 2 Cr App R 447
V, a 16-year-old girl, got so drunk when out with friends that she was incapable of walking and had to be given a lift home. D, a neighbour, was asked to help carry her into her house where her friends undressed her and put her to bed. Thereafter D stayed, ostensibly to make sure she did not vomit and choke. However, V claimed that he then climbed on top of her and had intercourse before she could kick him off. D was convicted of rape and appealed on the ground that, in this sort of case involving neither force nor fraud, a lack of consent had to be demonstrated either by speech or physical conduct. The Court of Appeal disagreed and dismissed the appeal.
The leading case on this area of law, where D is alleged to have raped V whilst the latter was voluntarily intoxicated, is Bree (2007) EWCA Crim 804; (2008) QB 131. The Court of Appeal quashed D’s rape conviction because the jury had not been adequately directed on the issue of V’s consent. The facts indicated that V, although very drunk, had retained the capacity to consent (and hence s 75(2)(d) did not apply) and V had become intoxicated voluntarily (and hence neither did s 75(2)(f)). The case therefore hinged on whether the Crown had proved that V was not consenting at the time of the alleged rape. The Court found that this had not been proven, given the inadequacy of the trial judge’s directions, and therefore the conviction was unsafe.
Bree (2007) EWCA Crim 804