Sexual Offences Act 2003 Rape Sexual assault is an assault on identity and is one of the most serious of the

non-fatal offences against the person. y 2.5% of woman claim to have been sexually assaulted in some sense over a 12 month period, yet the number of offences reported is significantly lower. Only 10% of reported offences end with a conviction. Indictable offence and carries a discretionary maximum sentence of life imprisonment. (Can only be tried before Crown Court) Section 1(1) of the Sexual Offences Act 2003 (replaced section 1 (1) of the Sexual Offences Act 1956 which simply stated it is an offence for a man to rape a women. ) New Act is gender neutral and is more specific in the exact elements of rape Youth Justice and Criminal Evidence Act 1999- restricts defence counsel questioning the victim to a limited scope. Only where it is relevant to consent in this particular case.

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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

Actus Reus 1) Penetration of the vagina, anus or mouth of B with A S penis Penetration Penetration is defined under section 79(2) of the Sexual Offences Act 2003 as a continuing act from entry to withdrawal. (Fagan v MPC [1969]) possible to commit assault by commission if consent is withdrawn? Section 79(2) places decision of Cooper v Schaub [1994] Crim LR 531 and Privy Council decision in Kaitamaki [1985] AC 147 on a statutory footing.

Defendant appeal his conviction of rape in NZ. It was alleged that he broke into the defendants house and raped her twice. His defence was that she was consenting or he believed her to be. (Honest belief was

sufficient for a defence in 1985) During the second occasion of sexual intercourse, the defendant stated that he realised that the complainant was not consenting after he penetrated her, but he did not withdraw. The Privy Council held that penetration is a continuing act, so if he continued with the act of intercourse knowing that she was not consenting, he was guilty of rape. The slightest degree of penetration is sufficient for rape. This is evident from the definition of vagina in section 79(9) of the 2003 Act as including vulva therefore full penetration is not required. Additionally, section 44 of the Sexual Offences Act 1956 remains good law. This provides that the emission of seed is not required, the prosecution only need prove that penetration occurred. Of the vagina, anus or mouth Under section 1(1)(a) of the 2003 Act, penetration must be of the vagina, anus or mouth of the complainant. It is clear that a women may be a victim of vaginal, anal or oral rape A man may be a victim or anal or oral rape Therefore, the Act is gender neutral Section 79(3) states that references to part of the body include references to surgically constructed parts of the body, a male to female transsexual who has undergone gender reassignment surgery and has a surgically constructed vagina may be the victim of vaginal rape. By including penile penetration of the mouth as rape the Act has widened the scope of the offence. The 1956 Act regarded oral rape as indecent assault as opposed to rape. Penile penetration The offence of rape can only be committed where the penetration occurs with the penis of the defendant. Non-consensual penetration with an object or any other part of the body will not amount to rape, but may fall under the offence of assault by penetration, contrary to section 2 of the 2003 Act. Therefore, a women cannot be convicted of rape as the principal offender but can be convicted as an accomplice to a rapist under section 4 of the 2003 Act. Alternatively, she might be convicted of rape as an accessory if she aids, abets, counsels or procures the rape as in the case of DPP V K and B [1997] 1 Cr App R 36. A transsexual who has undergone gender reassignment surgery from female to male can be guilty of rape (Section 79(3))

2) Absence of consent Absence of consent Under section 1(1)(b) of the 2003 Act, the offence of rape requires proof that the complainant did not consent to the penetration. As stated above, the absence of consent is part of the actus reus of rape. (See notes on consent) Marital rape Where a husband has non-consensual intercourse with his wife, he may be guilty of rape. this was only established in 1991 in the case R v R [1991] 3 WLR 767. This decision was put onto a statutory footing by section 142 of the Criminal Justice and Public Order Act 1994 which first removed the word unlawful from the offence of rape. The 2003 Act maintains this position. Mens Rea 1) Intentional penetration The penetration of the vagina, anus or mouth of the complainant by the defendant s penis must be intentional. This is a subjective element. It is unlikely to be a common issue of contention in rape cases, unless perhaps a defendant is intoxicated to the extent that he did not form such an intention. The mens rea of rape requires an intention to penetrate a particular orifice, where the defendant accidently penetrates an orifice; he cannot be convicted of rape in relation to that orifice. 2) No reasonable belief in consent Under s1(1)(c) of the SOA 2003, the offence of rape requires proof that the defendant did not reasonably believe that the complainant was consenting. A defendant will have the mens rea of rape if he intends there to be or knew that there was no consent to the penetration. He will also satisfy it if he recognised a risk that the complainant might now be consenting but went ahead with the act anyway.