The Legal information in this article is based on the England and Wales Jurisdiction. Please note that it may apply to some commonwealth nations.
The Sexual offences Act of 2003, Section 1 Rape declares
1) A person (A) commits an offence if –
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
(3) Sections 75 and 76 apply to an offence under this section.
(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.
In order for one to be guilty of Rape certain elements must have been present. We will begin with what is called in the legal circle as conduct elements. These are actions that are usually a prerequisite in the establishment of the actus reus. The wrong act (actus reus) of Rape involves the penetration of the mouth, anus of vagina of a man or a woman by a man’s penis. Thus it might come as a surprise to some that in English Law prior to the Criminal Justice and Public order act, Rape could have only been committed by a man, since only a man carry’s a penis. However since the Public order act of 1994, any non consensual penetrative act of the vagina, mouth or anus constitutes the act of Rape.
How does one determine whether of not an individual has given consent. I can safely assume that due to the patriarchal nature of certain societies in the “olden days”, men would usually have the benefit of the doubt with regards to consent from a woman.Thus husbands could not have been guilty of raping their wives in England many years ago. Matthew Hale a juror, stated in the History of the please of the crown that a “husband cannot be guilty or rape because hath given up herself in this kind to her husband, which she cannot retract”. In the modern day we have heard many people talk about their idea of a woman’s or man’s consent. To prove beyond a reasonable doubt that someone did or did not consent can be a pain staking task, both for the prosecution and the defense. In the absence of apparent signs of a struggle or some form of violence, jurors were more inclined to acquitting individuals who had been charged and indicted in this regard.As you can imagine victims were forced to bear the shame of having answer to allegations of promiscuity, but moral infidelity as well.
Here is how the Sexual offences act of 2003 defines consent; a person consents if he agrees by choice, and has the freedom and capacity to make that choice. One cannot downplay the importance of establishing consent in such circumstances, but as the University of London subject guide suggest, such a definition raises some serious philosophical questions. In Olugboja 1982 Lord Justice Dunn rendered, that ” There is a difference between consent and submission; every consent involves a submission, but it by no means follows that a mere submission involves consent” To help curb this hurdle English law has constructed two presumptions which are considered Conclusive and Evidential presumptions.
Conclusive presumptions can be found in Section 76 of the SOA 2003. Please read thoroughly so you can gain a greater understanding of the themes briefly in this article mentioned this piece of statutory information. Simply put, If the defendant intentionally lies as to the purpose of the intercourse and if the defendant intentionally causes an individual to consent by impersonating somebody who the victim knows, like a twin brother or something of that sort, then it is conclusively presumed that the victim did not consent to the act.
The second presumption is what is know as evidential presumption. This is found in Section 75 of the SOA 2003 which indicates that if there is evidence to suggest that if the defendant used violence, drugged the complainant, to a point where the complainant is stupefied, and penetrates the complainant then the complainant would not be considered to have consented to the act. These are some examples of evidential presumptions. Finally as in all criminal cases, one must consider whether the person who committed the act was mentally sound and mentally capable of committing the crime. The courts would attempt to determine the mens rea or the “guilty mind” of the individual. It is said that a belief in consent is not enough. Whether or not one’s belief is “reasonable” is a matter for the jury or the judge to decide.