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  • Level: GCSE
  • Subject: Law
  • Word count: 3316

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

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Introduction

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.'1 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.2 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.3 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.4 The old Sexual Offences Act 1956 held that the offence continues throughout the penetration, ...read more.

Middle

than stranger rapes because of mitigating factors in the former or aggravating factors in the latter.22 Acquaintance rapes are more likely to be 'no-crimed' or discontinued than stranger rapes, whether, purely on evidential grounds or partly because they are less easily regarded as convincing by criminal justice professionals. The 1994 Act as well as criminalising rape within a marital relationship through elimination of the word 'unlawful' from the statutory definition, other fundamental changes to the definition of rape were bought about. Firstly, anal intercourse was included along with vaginal intercourse and with this the law now recognised that a man can rape a woman or another man. It has been argued that this ignores the reality of rape, as 'it is still men who are raping and women who are being raped.'23 However, this reform rightly recognises that sexuality today is diverse and rape of males is an increasing fact of the twenty-first century. Secondly, this definition is gender neutral in that the offence is classified as rape whether the victim is a woman or man. This is possibly a reflection of the currency of the term 'male rape' where male rape can only involve anal intercourse whereas rape of a woman may involve vaginal and/or anal intercourse. Before 1994 the maximum sentence for buggery of a woman without consent was life imprisonment compared with the maximum of ten years for buggery of a man without consent and one effect of the 1994 amendment was to provide a single maximum sentence of life imprisonment.24 In 2000 the Home Office published Setting the Boundaries: Reforming the Law on Sex Offences, which was a report to the Home Secretary from the Sex Offences Review which he set up in 1999. This reviewed sex offences in the common and statute law of England and Wales and the recommendations made were firstly, to provide coherent and clear sex offences which protect individuals, especially children and the more vulnerable, from abuse and exploitation; secondly, to enable abusers to be ...read more.

Conclusion

1 Speech by David Blunkett MP as cited in http://www.pm.gov.uk. 2 Ashworth, A. (1999). Principles of Criminal Law. 3rd Edition. Oxford University Press. p. 351. 3 Allen, M. (2003). Textbook on Criminal Law. 7th Edition. Oxford University Press. p. 365. 4 Sexual Offences Act 1993, s.1 as cited in http://uk.westlaw.com. 5 Ashworth, A. (1999). p. 352. 6 [1985] AC 147 as cited in http://uk.westlaw.com. 7 http://uk.westlaw.com. 8 Ashworth, A. (1999). p. 352. 9 [1969] 1 QB 439. 10 Ashworth, A. (1999). p. 352. 11 Ashworth, A. (1999). p. 352. 12 [1981] 73 Cr App R 164 cited in http://uk.westlw.com. 13 Clarkson, C.M.V. and., Keating H.M. (1994). Criminal Law: Text and Materials. 3rd Edition. Sweet and Maxwell. p. 579. 14 Clarkson, C.M.V. and., Keating H.M. (1994). p. 579. 15 http://www.sentencing -advisory-panel.gov.uk/research/rape/research.pdf. 16 [1992] A.C. 599 as cited in http://uk.westlaw.com. 17 http://uk.westlaw.com. 18 Smith, J.C. (1999). Smith and Hogan; Criminal Law. 9th Edition. Butterworths. p. 460. 19 Smith, J.C. (1999). p. 461. 20 [2004] EWCA Crim 292 as cited in http://www.lawtel.com. 21 http://www.homeoffice.gov.uk. 22 http://www.guardian.co.uk. 23 Clarkson, C.M.V. and., Keating, H.M. (2003). Criminal Law: Text and Materials. 5th Edition. Sweet and Maxwell. p. 610. 24 Ashworth, A. (1999). p.352. 25 Allen, M. (2003). p. 378. 26 http://www.homeoffice.gov.uk. 27 Ashworth, A. (1999). p.352. 28 Allen, M. (2003). p. 378. 29 [1982] QB 320. Judge would need to provide some direction on the definition of consent and the nature of this direction would depend on the consequences of the particular case. 30 Setting the Boundaries: Reforming the Law on Sex Offences 2000 cited in http:://www.homeoffice.gov.uk. 31 http://www.sentencing-advisory-panel.gov.uk/research/rape/research.pdf. 32 Protecting the Public: strengthening protection against sex offenders and reforming the law on sexual offences. As cited in http://www.homeoffice.gov.uk/docs/ptp.pdf. 33 Clarkson, C.M.V. and., Keating, H.M. (2003). p. 610. 34 Clarkson, C.M.V. and., Keating H.M. (1994). p. 589. 35 Clarkson, C.M.V. and., Keating H.M. (1994). p. 589. 36 Ashworth, A. (1999). p. 349. 1 ...read more.

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