An Analysis of Fraud Vitiating Consent in Rape Cases
| Author | Alan Reed |
| DOI | 10.1177/002201839505900309 |
| Published date | 01 August 1995 |
| Date | 01 August 1995 |
| Subject Matter | Article |
AN
ANALYSIS
OF
FRAUD
VITIATING
CONSENT
IN
RAPE
CASES
Alan Reed*
The Court of Appeal decision in R v Linekar (1994) The Times, 26 October
raises important issues over the scope
of
fraud and consent in rape cases.
The correct categorisation of the impact of fraud, affecting not simply
consent in rape but also all other non-fatal offences against the person, has
troubled many Commonwealth jurisdictions throughout the last century.
Confusion has been caused by conflicting dicta on this area. Both academics
and practitioners should welcome the clarification given by their Lordships
as to exactly which types of fraud vitiate consent in cases of alleged rape.
Although rape itself is an offence with a long history it was not actually
defined by statute until 1976 by the Sexual Offences (Amendment) Act. By
s I(I) of the 1976 Act the conduct prohibited by the offence is defined as,
'unlawful sexual intercourse with a woman who at the time of the intercourse
does not consent to it'. The maximum punishment is the imposition of life
imprisonment. As the Law Commission have stated (Law Com 1990
Working Paper No 116) this definition, though declaratory of the modern
common law, differs from the traditional common law definition, according
to which rape consists in having 'unlawful sexual intercourse with a woman
without her consent by force, fear or fraud'.
The crucial mental element required for rape is that at the time of the
intercourse the man either knows that the woman did not consent to it or,
'is reckless as to whether she consents to it',
cfthe
1976Act, s I(I)(b). It is
incumbent on the prosecution to prove this element
of
the offence, and in
tandem that the accused had sexual intercourse with the complainant
together with lack of consent. It is now clear by subsequent case precedents
that adefendant is not reckless if he believes (however unreasonable that
belief may be) that the woman is consenting. However if the jury conclude
that the defendant could not care lesswhether she wanted to have intercourse
but carried on regardless then they would convict him of reckless rape (see
R v Satnam (1983) 78 Cr Ap R 149, 155). A similar reference on reckless
rape was vividly given by Lord Hailsham in R v Morgan
[1976]
AC 182,215
when he referred in relation to recklessness to an, 'intention of having
intercourse willy-nilly or not caring whether the victim consents or no'. It
should further be noted that by s I (2) of the 1976Act that in relation to the
question whether the accused believed that the woman was consenting, the
jury have a statutory obligation to have regard, 'in conjunction with other
matters', to the presence or absence of reasonable grounds for his belief.
Attendant circumstances such as representations or inducements, albeit
false, fall to be determined and were indeed in issue in Linekar itself.
•Solicitor and Lecturer in Law.
310
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