The intention the judicial system in rape cases is to strike the right balance between protecting the victims and ensuring fairness under the law for defendants by helping juries with the fundamental question of whether the victim was able to and did in fact give his or her consent on the occasion in question, also giving indications to the public about circumstances in which sexual activity is likely to be wrong and help genuine victims bring cases to court.
The fundamental issue in many sexual offences is the concept of consent. In R v Olugboja, the appellant had sexual intercourse with a 16 year old who was too frightened to resist although she had not been threatened with force or violence. It was held in the Court of Appeal that the constraint on a woman’s will without force, fear of force or fraud could negative consent. Consent is a question of fact for a jury who should consider its ordinary meaning and, if necessary, be directed on the distinction between consent and submission, here the ratio decidendi is that is sufficient to prove that, in fact, the woman did not consent to intercourse. Consent may be absent even where there is no force, fear of force or fraud. The court derived four propositions from the Olugboja case, they were:
- Consent is no absolute concept, it covers a wide spectrum with no definite intermediate stages, ranging from actual desire on one hand to absolute reluctance acquiescence on the other.
- The jury must be directed as to the question of consent, and be informed about the differences between consent and mere submission
- In cases with the elements of threats other than violence, the jury should be directed to step in the victim’s shoes immediately before the act of sexual intercourse, and taking into account all the relevant circumstances, and in particular the events which surmounted to the intercourse.
- The jury should distinguish between mere submission and real consent by applying their ‘combined good sense, experience and knowledge of human behavior’
Rape takes place when the man knows that the other person is not consenting or is reckless whether or not she or he is not consenting. It would seem logical from this line of thought to acquit a man who believes that the victim is consenting, even though he is wrong (this is because there is no mens reas to this alleged ‘crime’ since the person does not have the guilty mind when they committed this ‘offence’ then they shouldn’t be punished for a crime which they in their own minds did not commit.)
For mistaken belief under the new Bill under clause 1(2) adds a new definition of rape where a man doesn’t care whether the victim is consenting this would constitute a rape. This approaches the issues of mistake and recklessness. The subjectivism view is that its acceptable defendants may have held beliefs inconsistent with awareness that they were posing an unjustifiable risk or harm, this leads to an acquittal. The main disadvantage for this argument is that the entire fault may be resting on the defendant but he would be acquitted due to the negligence in beliefs and thus causing the harm in question, this would be highly immoral and no jurisdiction would adopt this system. On the other extreme we have objectivism where people should take reasonable care to avoid wrongdoing. Clause 1(3) also gives clarifies another area in which rape may occur that is when the defendant doubts the consent given by the victim. This clause also requires the defendant to take reasonable and adequate steps to find if the consent was real. Although the consent might have been given voluntarily, the defendant can still be guilty of rape if the circumstances were right, e.g. the victim was being unlawfully detained or was threatened that if they did not consent to the sexual intercourse then they would face being other “worse” consequences.
Lord Hailsham in DPP v Morgan, held that this follows as a matter of unalterable logic. It is not, then a question of deciding on the elements of a defense of mistake. It is not a defense so much as the negation of one element of the crime. In Morgan, the defendants were convicted of rape although they claimed a mistaken belief that the woman was consenting. They appealed against the direction that they were only entitled to rely on their belief if it was both honestly and reasonably held. It was held in the House of Lords that there was a misdirection but no miscarriage of justice. The mens reas of rape is intention to have intercourse without consent. An honest belief in consent negatives that mens reas. The mistake does not also have to be reasonable. The ratio decidendi for this case is that a genuine mistake about the existence of a definitional (actus reus) element of a crime negates mens rea whether or not that mistake is based on reasonable grounds).
The Sexual Offences Bill will alter the test to include the reasonableness under the law. Prosecution can prove there is reasonable room for uncertainty about whether someone was consenting and that the defendant did not take reasonable action in the circumstances to ensure that the other person was willing to take part in sexual acts. Reasonableness will be judged by reference to what an objective third party would think in the circumstances. The jury would consider the actions of bother parties, the circumstances in which they have placed themselves and the level of responsibility exercised by both. Sexual activity without the consent of one of the parties involved is a non-consensual offence. This is the case whether the offender intends to engage in sexual action with another person in full knowledge that they do not consent. These non-consensual offences are acts of sexual violence and involve force. The bill increases the protection offered by the law and sets penalties for these offences that reflect the seriousness of the abuse involved. It will still be for the prosecution to prove that the victim did not consent.
Consent doesn’t always necessarily make sexual intercourse valid, in R v Larter and Castleton the appellants appealed against their conviction of rape of a 14 year old girl who gave evidence to the effect that she gave evidence to the effect that she remained asleep during the act and remembered nothing of what had happened. The appellants argued that the judge should have given an express direction as in R v Howard that the prosecution had to prove either that she remained physically resisted or if she did not, that her understanding and knowledge were such that she was not in a position to decide whether to consent or resist. In rejecting their appeal the court stated that the essential element in the definition of rape is the absence of consent. In R v Linekar, the defendant was convicted of rape on the basis that the woman’s consent was vitiated by him defrauding her into believing that he would pay for the intercourse. It was held that since the woman had consented to what she knew was sexual intercourse with the particular man in question, the false pretence about payment did not vitiate her consent. The principle behind this is that mistake as to matters other than the nature of the act of identity of the defendant does not vitiate consent to sexual intercourse, this case can be compared to R v Elbekkay, where the mistaken belief was sufficient to make the man guilty, but in Elbekkay the woman was mistaken as to the identity of the act, i.e. who she was having intercourse with.
Consent is no defense where it is negative by mistake. This will be the case where the victim’s mistake whether or not induced by fraud it as to either i) the identity of the accused or ii) the nature and quality of the act consented to. Thus consent is no defense where the defendant has sexual intercourse with the victim whose consent he has gained by impersonating her husband/partner. In R v Elbekkay. The complainant consented to penetration in the belief that the defendant was someone else. The defendant appealed against conviction on the basis that whilst rape included intercourse obtained by impersonation of a husband (Sexual Offences Act 1956 s1(2) the same did not apply to other cases. The Court of Appeal held that the question was simply whether the woman consented and she had not consented to intercourse with the defendant in this case. Nor is consent a defense where the victim is mistaken to the nature and quality of the act (e.g. thinks it’s a medical procedure not a sexual intercourse, this occurred in R v Williams a choirmaster was convicted of rape having obtained submission by pretending that the act was an operation. The Court of Appeal confirmed that apparently consent to the act of sexual intercourse is no defense if obtained by fraud as to the nature of the act, despite the introduction of the offence of procuring (consensual and non-consensual) sexual intercourse by false pretence or representation.
The Bill is designed to cover the rights of the public more adequately. Rape is one of the most serious and abhorrent crimes a person can commit. It is a crime that generates fear and alarm in the community, in addition it also leads to degrading and inhuman treatment. Since UK’s entry into EU it would have a positive obligation to protect its citizens more from rape as Art 4 of European Convention of Human Rights stipulates that a person should not be subject to inhuman and degrading treatment. Thus the government would have a positive obligation to prevent rape in so far as possible from happening.
In conclusion, rape is one of the violating crimes existing and legislation would need to be enacted to ensure that the interest of both parties both the defendants and victims are protected so far as possible. For the victim, the courts would try to give them justice by acknowledging their violation. For defendants the courts would seek to see whether rape has been committed, and if so then to what extent should he or she be liable and what sentence should be levied on him. Furthermore, the most dynamic concepts in rape charges are the most fundamentals of criminal law the mens reas and actus reus, the mistaken belief and the type of consent given.
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