Within this definition there are a number of other elements, such as by virtue of section 79 the "vagina" is to be interpreted as to include the vulva and other sexual organs whether male or female, which are provided by modern surgical techniques. This has now closed the loophole with regards transsexual rape as was laid down in Matthews, that those persons who have undergone gender-reassignment surgery are now also protected in this area of law. Section 79(2) of the Act also provides that penetration is a 'continuing act' from entry to withdrawal thus if a person withdraws their consent after penetration but the other person continues with intercourse they will be liable for rape. This was seen in the decision in Kaitamakil where the privy council held that "sexual intercourse is a continuing act which only ends with withdrawal”, and the word 'complete' was interpreted as meaning 'having come into existence', not 'being at an end'. This emphasis on penetration as a continuing act was also stressed in Cooper v Schaub, however it was also faced with much criticism since in effect rape can be committed by omission. Moreover the actus reus of the offence of rape is still limited to penile penetration so although this new Act has accommodated for transsexuals, the law does not recognise that a woman can commit rape, instead this falls under the scope of assault by penetration or being convicted as an accomplice to rape.
The key element in the actus reus of rape is the absence of consent. The prosecution must prove that at the time of penetration (whether vaginal, anal or oral) that the victim did not consent to it. Before the SOA 2003 came into place there was no statutory definition of "consent", instead the decision in Olugboja was used to represent the approach to absence of consent in rape. The courts in this case left the parameters of absence of consent undefined and placed the burden on the jury to decide whether consent was absent in any particular case by giving the word "consent" its ordinary meaning. It was recognised that such an approach was not entirely straightforward and it sparked fierce criticism on the basis that the jury had to consider the difference between mere consent and mere submission. As a result the 2003 Act presented a statutory definition in order to clarify and explain the law "setting clear boundaries for society as to what is acceptable and unacceptable behaviour". Section 74 of the SOA 2003 defines consent to the extent that it provides:
"For the purposes of this part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice."
However despite the attempts made by the SOA 2003 this definition does little to clarify or explain the absence of consent, instead it leaves much scope for interpretation. The term "freedom" is not clear, the Sexual Offences Review recommended that consent should be defined as 'free agreement' since this would necessarily be voluntary and genuine. Instead however they chose to use the terms "agrees by choice" and "freedom", these terms do not specify the parameters of this phrase and again it will be left up to the jury to decide its boundaries. Temkin and Ashworth are of the opinion that the terms "freedom" and "choice" are ideas, which raise philosophical issues of such complexity and are therefore ill suited to the needs of Criminal Justice. With regards the term "capacity" again this term is left undefined, nevertheless it may be taken to mean that a person lacks the capacity to make a choice because of their age, any mental disorders, or because that person has been drugged or is intoxicated.
The definition of consent as supplied by section 74 is also supplemented by sections 75 and 76 of the Act, which set out evidential and conclusive presumptions about consent. Beginning with evidential presumptions, section 75 lists six sets of circumstances, which if established to have taken place with the defendant's knowledge, will create an evidential presumption that the complainant did not consent and that the defendant did not reasonably believe the complainant consented. This means that the prosecution can rely on the presumption unless the defendant discharges an evidential burden to the contrary. In order for the presumptions not to apply, the defendant will need to satisfy the judge from the evidence that there is a real issue about consent that is worth putting to the jury. The six circumstances derive from the common law and when first recommending these proposals the Government stated, “We wish to make a statutory provision that is clear and unambiguous,” however this list of circumstances differs to what the government recommended. Section 75(2)(a) and (b) deals with situations in which violence or the threat of violence is used, within this phrase are the words "any person", this means that the violence does not have to be administered by the "defendant, however the fear of violence must be immediate violence and not fear of any future events. Similarly in sections 75(c) where the complainant is unlawfully detained again the defendant need not be the one that brought about this detention it can be a third party.
Section 75(2)(d), provides that the complainant must be asleep or unconscious at the time of the relevant act, it has been asserted that this circumstance is quite similar to the common law in that pre-2003 the law required the victim to be 'capable of giving consent'. This was seen in the case of Larther and Castleton where a girl of fourteen was not capable of giving consent because she was insensible through drink. Similarly in the case of Malone of sixteen was not capable of giving consent because she was intoxicated. The Circumstance in section 75(2)(e) deals with complainants being unable to consent due to the their physical disability, this does not cover those victims who suffer from a mental disorder, however these persons are sufficiently protected elsewhere. Section 75(2)(f) relates to a situation where a substance has been administered in order to overpower the victim. This circumstance is seen to reflect changing social attitudes and activities in society and is said to offer greater protection to those victims of the 'date-rape' drug as well as those under the influence of alcohol. Therefore, in situations in which an individual has been given an intoxicant without their consent, whether by the defendant or a third party, there will be a prima facie presumption that she did not consent to intercourse. Thus voluntary consumption of the substance will not suffice.
Conclusive presumptions as to consent are set out in section 76 of the SOA 2003; these seem to extend on the common law presumptions. In this section it is to be proved that the defendant 'intentionally deceived the complainant as to the nature or purpose of the relevant act' (s.76 (2) (a)), or that the defendant 'intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant' (s.76 (2) (b)), then '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.’ This replicates the common law for prior to the SOA 2003 there were many cases on 'consent by deception', which established that if the victim was induced to consent on the basis of fraudulent misrepresentation as to the nature of the act, then there was no consent. This is evident in the case of Flattery, were the complainant was deceived into thinking sexual intercourse was a medical procedure and in Williams the complainant was deceived into thinking sexual intercourse was a breathing exercise to help with her singing.
In contrast to these cases are the cases of Lineker and Elebakkay where it was held that in situations where the complainant consented to sexual intercourse knowing full well what the nature of the act was but had only been merely deceived by a promise that was not intended to be fulfilled, this did not constitute rape. In Lineker, Moorland J reiterated: 'An essential ingredient of the offence of rape is the proof that the woman did not consent to the actual act of sexual intercourse with the particular man who penetrated her'. Thus, where a complainant consents to sexual intercourse in return for a promise of payment, fraud on the part of the man does not remove consent to the act on her part. The High Court of Australia in Papadimitropolous also supports this view.
The 2003 Act also makes a major change to the mental element required for rape in
that it abolishes the Morgan defence of a genuine though unreasonably mistaken belief as to the consent of the complainant. The concept of recklessness has also disappeared entirely from the offence of rape, instead section 1(1)(c) focus on whether the defendant has a reasonable belief in consent and by section 1(2) whether a defendant's belief is reasonable is to be determined having regard to all the circumstances including any steps the defendant has taken to ascertain whether the complainant consents. As was addressed before the decision in Morgan and the defence used sparked much criticism and uproar by the public and media. However this landmark decision was widely applauded by subjectivists for its general effects on the criminal law, since it emphasised that people ought to be judged on the facts as they believed them to be, and not on facts to which they had not given any thought. Nevertheless the Government rejected the "couldn't care less test" as recommended by the Home Office Review Setting the Boundaries and favoured the reasonableness test.
The subjective test was seen as undermining the person's autonomy so in order to remedy this the Government did not adopt the reasonableness test in the sense of what a reasonable person would have believed, for this was attacked on the ground that it did not take into consideration those with learning difficulties and mental disorders. Rather it adopted a general test so as to determine all the circumstances surrounding the offence. The Home Office Committee, believing this now allowed them to take into account a person's characteristics, applauded this new test. Temkin and Ashworth conversely stress that it would have been easier simply to retain the reasonable person standard and to add a defence for those mentally incapable of attaining it. With regards the term 'all circumstances', Temkin and Ashworth also believe that this is a very broad reference and that it is "an invitation to the jury to scrutinise the complainant's behaviour to determine whether there was anything about it which could have induced a reasonable belief in consent." This was seen in the pre-2003 case of Mcfall where it is indicative that a woman may often consent to sexual intercourse for an ulterior purpose in this case her life. Thus it is to be left up to the jury to decide having looked at all the circumstances surrounding the offence whether this was the case, and whether it was reasonable for the defendant to have held this belief that the woman was consenting.
In referring to the mental element of intention, the prosecution must prove that the defendant intentionally penetrates the vagina, anus or mouth of the complainant with his penis. It is however highly unlikely that a man would accidentally do this if he had not intended to do so. Nonetheless the test of 'virtual certainty would be used in the rare circumstance to determine whether penetration of a persons vagina, anus or mouth was a virtual certainty as a result of the defendants actions. The law has thus moved away from the notion of 'reckless rape’ and it is now to be interpreted as 'intentional rape' the reason being is that 'reckless rape' was perceived to be not as serious as 'intentional rape' and this is what the SOA 2003 tried to dispel from.
In Conclusion, it can be granted that the principal aim of the Sexual Offences Act 2003 was to repeal almost all of the existing statute law in relation to rape as well as to dismiss out-dated views the law may have held on this area. There is no doubt that the law has made significant changes to the issue of consent and mens rea in that they have now provided a definition of consent which is supplemented by evidential and conclusive presumptions and they have abolished the Morgan defence in favour of a general test of reasonableness. They believed this new change in the law was essential in order to provide better protection to the victim while not prejudicing the defendant's right to a fair trial, the endeavour was to help juries reach just and fair decisions on what is a difficult area of law. However is would seem that in trying to modernise the law the Act in its final form goes against the original objectives of the Government. Changes in the substantive criminal law can only have a modest effect on the increasing of reporting sex offences and improving conviction rates, what are needed are more changes in social attitudes and police practices.
Books:
Card, Richard (2005) Sexual Offences: the New Law, 1st Edition, Jordan's New Law Series.
Card, Richard Cross and Jones (2004) Criminal Law, 16th Edition, Butterworths.
Hill, Barry and Fletcher-Rogers, Karen (1997) Sexually Related Offences, Sweet and Maxwell.
McGregor, Joan Is It Rape? Ashgate.
Rook, Peter and Ward, Robert (2004) Sexual Offences Law and Practice, 3rd Edition, Sweet and Maxwell.
Selfe, David and Burke, Vincent (2001) Perspectives on Sex, Crime and Society, 2nd Edition, Cavendish Publishing.
Ternkin, Jennifer (2002) Rape and the Legal Process, 2nd Edition, Oxford University Press.
Temkin, Jennifer and Ashworth, Andrew [2004] 'The Sexual Offences Act 2003 Rape Sexual Assaults and the Problem of consent' Crim LR 328.
Electronic Information:
The Crown Prosecution Service: Sexual Offences Act 2003
www.cPs.gov.uIdlegal/section7/chapter a.html
The Crown Prosecution Service: The New Sexual Offences Act 2003
www.cps.gov.uk/publications/communications/fs-sexoffences.html
Sexual Offences Act 2003
www.sws/soa2003.htm
Cases:
DPP v Morgan [1974] 2 All ER 347
R v Watson [1992] Crim LR 434
R v McFall [1994] Crim LR 226
R v Kaitamaki [1985] AC 147 (pc)
R v Brookes (1993) 14 Cr App R (s) 497
R v Cooper and Schaub [1994] Crim LR 531
R v Oligboja [1981] 3 All ER 442
R v Larther and Cast1eton [1995] Crim LR 75
Rv Harling [1938] 1 All ER 307
R v Flattery (1877) 1 QBD 410
R v Williams [1923] 1 KB 340
Papadimitrolous (1957) 98 CLR 349 (Aus)
R v Lineker [1995] 3 All ER 69
R v Elbekkay [1995] Crim LR 163
Home office, Setting the Boundaries: Reforming the law on Sex Offences (2000), Volume 1.
Home Office, Protecting the Public (cm.5668, 2002).
Temkin, Jennifer and Ashworth, Andrew [2004] 'The Sexual Offences Act 2003: Rape, Sexual Assaults and the Problems of Consent', Crim LR, p329.
Se]fe, David and Burke, Vincent (200]) Perspectives on Sex, Crime and society, 2nd Edition, Cavendish Publishing, p6.
Rook, Peter and Ward, Robert (2004) Sexual Offences, Law and Practice, 3rd Edition, Sweet and Maxwell, p2.
Heilbron Committee, Report of the Advisory Group on the Law of Rape, cmnd 6352, 1975 HMSO VIII summary of recommendations, Para I, p36.
Rook, Peter and Ward, Robert (2004) Sexual Offences Law and Practice, 3rd Edition, Sweet and MaxweIl, p6.
Crown Prosecution Service: The New Sexual Offences Act 2003 www.cPs.gov.ukipublications/communications/fssexoffences.htmlp 1
This provides that "A person (A) commits an offence if - (a) he intentionaIly penetrates the vagina, anus or mouth of another (B) with his penis, (b) B does not consent to the penetration, and (c) A does not reasonably believe that B consents."
Temkin, Jennifer and Ashworth, Andrew [2004] 'The Sexual offences Act 2003, Rape, Sexual Assaults and the problems with Consent, Crim LR, p321.
(1996) [Reading Crown Court - unreported].
Ibid, per Lord Scarman pp 151-152.
Selfe, David and Burke, Vincent (2001) Perspectives on Sex, Crime and Society, 2nd Edition. Cavendish Publishing, p74.
Rook, Peter and Ward, Vincent (2004) Sexual Offences Law and Practice, 3rd Edition. Sweet and Maxwell, p25.
Temkin, Jennifer and Ashworth, Andrew [2004] 'The Sexual Offences Act 2003 (1) Rape, Sexual Assaults and the Problems o/Consent', Crim LR, p328.
Rook, Peter and Ward, Robert (2004) Sexual Offences Law and Practice, 3rd Edition, Sweet and MaxwelI, p2.
Temkin, Jennifer and Ashworth, Andrew [2004] 'The Sexual offences Act 2003 (J) Rape. Sexual Assaults and the Problems with Consent, Crim LR, p328.
Rook, Peter and Ward, Robert (2004) Sexual Offences Law and Practice, 3rd Edition, Sweet and Maxwell, p3.
Government White Paper, Protecting the Public, Para 30.
Finch, E and Munro, V [2004] 'The Sexual Offences Act 2003: Intoxicated consent and Drug assisted Rape Revisited' Crim LR p793.
Rook, Peter and Ward, Robert (2004) Sexual Offences Law and Practice, 3rd Edition, Sweet and MaxweIl, p47.
Selfe, David and Burke, Vincent (200 I) perspectives on Sex, Crime and Society, 2nd Edition, Cavendish Publishing, p79.
Crown Prosecution Service: Sexual Offence Act 2003, www.cDs.gov.uk.lega1.section7/chaptera.htmlp7
Temkin, Jennifer and Ashworth, Andrew [2004] 'The Sexual Offences Act 2003 (1) Rape, Sexual Assaults and the Problems ~vith consent' Cri m LR p340.
Home Office Review Setting the Boundaries: Reforming the law on Sex Offences (2000) volume 1.
Tenkin, Jennifer and Ashworth, Andrew [2004] 'The Sexual Offences Act 2003, Rape, Sexual Assaults and the Problems with consent' Crim LR p341.
Selfe, David and Burke, Vincent (2001) perspectives on Sex, Crime and Society, 2nd Edition, Cavendish Publishing, p111.
Tenkin, Jennifer and Ashworth, Andrew [2004] 'The Sexual Offences Act 2003, Rape, Sexual Assaults and the Problems with consent' Crim LR p346.