Critically evaluate the changes which have been made since 1990 to the definition of the offence of rape

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Critically evaluate the changes which have been made since 1990 to the definition of the offence of rape

Much of the law dates from a hundred years ago and more, when society was very different and sexual offences demonstrate the complexity of the law, which is made increasingly difficult by changes and amendments over time. Far more now is known about the patterns of sexual abuse and the law needs to reflect today’s knowledge. The changing definition of rape illustrates clearly how ‘we must have laws that are fit for the twenty-first century reflecting today’s society and attitudes and provide effective protection for individuals against today’s crimes.’ These changes have largely developed since 1990 with the introduction of the Criminal Justice and Public Order Act 1994 which built on the Sexual Offences Act 1956 which simply provided that ‘it was an offence for a man to rape a woman.’ The structure of sexual offences in English criminal law places rape at the top of the criminal hierarchy carrying a maximum penalty of life imprisonment. The criminal law has remained far from static and this essay is concerned with the evolution of the definition of rape particularly since 1990 and how and why these changes were brought about.

Rape is only committed where the man has sexual intercourse without the complainant’s consent. Intercourse is defined as the penetration of the penis into the vagina or anus: ejaculation is not required and the offence is committed as soon as penetration takes place, with the required fault element. Penetration is established on proof of the slightest entry of the defendants’ penis into the victim’s anus or vagina and more recently the mouth; the hymen need not be ruptured. Until 1993 there was a conclusive presumption that a male under the age of fourteen could not commit an offence of which sexual intercourse was an element, but this presumption has now been abolished. 

The old Sexual Offences Act 1956 held that the offence continues throughout the penetration, so that if the victim consents initially but revokes consent during intercourse and the man fails to withdraw he commits rape. This was reaffirmed in the decision in Kaitamaki v The Queen whereby, the defendant after penetration of the woman became aware that she was no longer consenting and did not desist. The defendant’s conviction was upheld by the New Zealand Court of Appeal and the Privy Council on the grounds that ‘a man is guilty of rape if he continues intercourse after he realised that the woman was no longer consenting. Critiques have questioned this firstly, because if the initial act of penetration is done with consent and without fault, the continuation by the man does not amount to the act of penetration; and if the withdrawal of consent by the woman turns consensual conduct to a criminal offence how quickly does the man have to withdraw in order to avoid committing a criminal offence? Commentators have argued that there is no reason to classify penetration in rape differently from how the concept of continuation was applied in the assault and battery case of Fagan v Metropolitan Police Commissioner whereby the force applied to the constable’s foot was considered as a continuing act. Moreover, if consent was given initially it is arguable that mens rea for rape was not present from the outset therefore perhaps the man should not be tried for the offence of rape and his conduct condemned as the highest form of sexual assault. Along side this; the 1956 Act did not recognise anal rape so in law male rape did not exist. This was articulated in the case of Gaston where the judge clearly stated that the actus reus of rape related only to vaginal intercourse and anal rape was not to be considered as rape in any circumstance.

For many years the common law maintained that rape could not be committed by a husband on his wife. This marital rape exemption originated from Sir Matthew Hale’s idea that the wife was the husband’s property and by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of the state of her health or how she happens to be feeling at the time.  In support of this J. Hawkins views consent as ‘immaterial’ and sexual intercourse with a husband according to law is merely obligatory. This could translate that the man’s rights override the woman’s ability to exercise sexual autonomy.  Furthermore, rape by a husband, was generally assumed to be precipitated by other events that had a bearing on the overall quality of the relationship, for example, marital rape was sometimes viewed as reflecting a poor marital relationship with the possibility of culpability on each side. The common law rule was gradually eroded from 1949 onwards by the courts in cases where there had been a separation order, a decree nisi for divorce, a non-molestation order, or a separation agreement between both parties. The wording of the 1956 Sexual Offences Act was eventually challenged by the House of Lords in the case of R v R. who said the word ‘unlawful’ should be disregarded, as it does not add any substance to the definition to rape. The central legal difficulty to overcome was the word ‘unlawful’ before 1994 was part of the statutory definition and had been intended to refer to intercourse outside of the bonds of marriage. However parliament in the Sexual Offences Amendment Act 1976 confirmed this meaning when the phrase was reiterated. The main reason for the decision was that the social conditions and expectations had changed and that ‘in modern times any reasonable person must regard Hale’s view as quite unacceptable.’ In making this judgement ‘it is arguable that this decision flouted the will of Parliament but, as is now generally recognised, the result was highly desirable.’ 

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Shortly after the case of R v R  The Criminal Justice and Public Order Act 1994 section 142 which substituted section 1 of the Sexual Offences Act 1956 was introduced. The European Court on Human Rights (ECHR) rejected the claim that the conviction in R amounted to retrospective lawmaking in violation of Article 7 of the European Convention. This rejection was further illustrated in the case of R v Barry Crookes who appealed against his conviction of his then wife on the grounds that the trial contravened European Convention on Human Rights 1950 Article 7(1). In 2002 the defendant was convicted ...

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