critically the impact of the SOA 2003 upon the offence of rape, with particular reference to the concepts of consent and mens rea.

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The Sexual Offences Act 2003 came into force on the 1st May 2004 and was seen as a major overhaul in the sexual offences framework.  Following the recommendations of the Home Office Review, Setting the Boundaries (2000) and the Government White Paper (2002) the Government considered that the existing law on sexual offences was “archaic, incoherent and discriminatory”, and that it failed to reflect, “changes in society and social attitudes”.  As a result the 2003 Act was to repeal almost all of the existing statute law in relation to sexual offences and to strengthen and modernise the law on this area.  The effect was to widen the category of persons who could be raped and also to widen the definition of what constituted rape, the idea being that the law should set out clearly what was unacceptable behaviour and provide penalties that reflected the seriousness of the crimes committed.  Clarification of the law on consent and mens rea were regarded as particularly important, as well as to make the offences as gender-neutral as possible.  This paper will address the impact that the Sexual Offences Act 2003 has had upon the concepts of consent and mens rea and also the criticisms it faced.

Before delving straight into the new law as set out in the SOA 2003, it is first essential to clarify the old law on rape and to establish how and why the law on rape needed to be reformed.  Rape has always been seen as one of the most serious non-fatal criminal offences, however before the SOA 2003 came into place there was still a strong perception by some that it was not treated as being so serious.  Many feminists have always viewed rape as a form of male dominance over women, believing it to be a form of power and control in all-patriarchal societies.  Feminists Kelly and Radford argued that one major way of affecting change in patriarchal societies was to have all sexual violence taken seriously so as to 'de-trivialise' it.  This is what the new law sought to achieve they wished to stress the importance of the seriousness of rape, for it is well established that rape is a largely under-reported crime.  Many victims do not come forward mainly because in many situations the victim has received unsympathetic treatment as well as the 'social stereotypes' and 'stigma' that rape carries with it.  The Sexual Offences Review discovered that the increase in reporting of rape and the reduction in conviction rates had generated substantial public disquiet about the way that rape offences are dealt with by the Criminal Justice System.

In addition, prior to the enactment of the SOA 2003 there was no statutory definition of "consent" and prior to 1976 there was no statutory definition of rape, thus these two concepts were open to interpretation.  Section 1 (1) of the Sexual Offences Act 1956 simply provided that 'It is an offence for a man to rape a woman' and section 1 (2) 'A man who induces a married woman to have sexual intercourse with him by impersonating her husband commits rape'.  This was further aided by the common law which defined rape as 'unlawful sexual intercourse with a woman without her consent, by force, fear or fraud.  In 1975 however attitudes were beginning to change and there was widespread concern expressed by the public and media about the decision of the House of Lords in DPP v Morgan about the necessary mens rea element needed to be acquitted of rape.  As a result of the controversy surrounding the case the Home Secretary appointed an Advisory Committee known as the Heilborn Committee to give urgent consideration to the law of rape. They proposed that a declaration of rape in statutory form was needed to

"Provide the opportunity to clarify the existing law and in particular to bring out the importance of recklessness as a mental element in the crime... such a definition would also emphasis that lack of consent (and not violence) is the crux of the matter".

Section 1 (1) ofthe Sexual Offences (Amendment) Act 1976 incorporated the Committee's recommendations into the Sexual Offences Act 1956 so as to include the mens rea element recklessness and to also give a proper definition of rape the first one in nearly fifty years.  Following even more recent changes in social attitudes the Criminal Justice and Public Order Act 1994 re-defined the offence once again by bringing anal intercourse within its scope and removing the word "unlawful" from the statutory definition of rape.  These alterations were put in place with the effect that the law now recognised that a man could also be the victim of rape and that a woman could now be raped by her husband as was decided in R v R.

As is evident there were many problems with the old law, even though the law recognised the ever-changing social attitudes it still did not offer enough protection. The 2003 Act sought to remedy these problems and to provide new measures, which would redress the balance in favour of victims without prejudicing the defendant's right to a fair trial.  The new Act was designed to be clear, coherent, fair and nondiscriminatory and so the new full definition of rape as set out in section 1(1) required the prosecution to prove three things: intentional penetration, absence of consent and absence of reasonable belief in consent.  Another significant difference to that of the old law is that it has made it more gender-neutral by replacing "man" with "person" and they have also broadened the definition so that it includes penetration of the mouth as well as the vagina and anus.  This was controversially recommended by the Sexual Offences Review on the basis that "forced oral sex is as horrible, as demeaning and as traumatising as other forms of penile penetration."

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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 ...

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