Rape Offence in UK Law

R. v. Morgan 1976 A.C. 182 stated the law of rape as it then stood. Their Lordships were primarily concerned with the necessary mens rea of the offence. They were not concerned with, nor did they consider, the actus reus. But there is a passage in the speech of Lord Hailsham, at page 210, which appears to indicate that the Lord Chancellor was accepting the common law definition of rape, that is to say sexual intercourse by force, fear or fraud.

Although "consent" is an equally common word it covers a wide range of states of mind in the context of intercourse between a man and a woman, ranging from actual desire on the one hand to reluctant acquiescence on the other. We do not think that the issue of consent should be left to a jury without some further direction.

In many cases, there will be no reason to take any official action at all. But the message of sections 9 and 13 is that any sort of sexual activity with a child under 16 is an offence, unless in the case of a child who has reached 13 the perpetrator reasonably believed that the child was aged 16 or over. There are many good policy reasons for the law to convey that message, not only to adults but also to the children themselves.

In my view this does not engage the article 8 rights of the appellant at all, but if it does, it is entirely justified. This it attempts to do by a clear rule that children under 13 are incapable of giving any sort of consent to sexual activity and treating penile penetration as a most serious form of such activity. This does not in my view amount to a lack of respect for the private life of the penetrating male.

Even supposing that it did, it cannot be an unjustified interference with that right to label the offence which he has committed "rape". But the law has disabled children under 13 from giving their consent. In my view the prosecution, conviction and sentence were both rational and proportionate in the pursuit of the legitimate aims of the protection of health and morals and of the rights and freedoms of others.

Against that background, we turn to the offence of rape of a child under 13, contrary to section 5 of the Act. The appropriate sentence is likely to lie within a very wide bracket, depending on all the circumstances of the particular offence. There will be very few cases in which immediate custody is not called for, even in relation to a young offender because the purpose of the legislation is to protect children under 13 from themselves, as well as from others minded to prey upon them.

The evidence relating to "choice" and the "freedom" to make any particular choice must be approached in a broad commonsense way. Contrary to her wishes, and knowing that she would not have consented, and did not consent to penetration or the continuation of penetration if she had any inkling of his intention, he deliberately ejaculated within her vagina.