Rape
| Jurisdiction | United Kingdom |
| Pages | 21-36 |
| Author | Patricia Lees,Eleanor Laws |
2
RAPE
A. Introduction 2.01
B. Offences Committed Pre- 1.1.1957 2.02
1. Denition 2.03
C. Offences Committed between 1.1.1957
and 21.12.1976 2.14
D. Offences Committed between
22.12.1976 and 2.11.1993 2.26
E. Offences Committed between
3.11.1994 and 30.4.2004 2.37
F. Offences Committed from 1.5.2004 to date 2.46
1. Sexual Oences Act 2003 2.46
A. INTRODUCTION
e oence of rape, originally a common law oence, became a statutory oence in 1957,1
and was later dened by statute in 1976.2 e oence was extended in 1992 so that a hus-
band could be convicted of raping his wife. e House of Lords in R v R [1992]3 said the
marital exemption was a common law misconception (which had been followed for years);
R v R simply claried the law. In 1994 the denition of rape was extended to include non-
consensual anal intercourse upon a male or female.4 e SOA 2003 extends the denition
further. Most notably, non- consensual penile penetration of the mouth is now dened by
s 1 as rape.
B. OFFENCES COMMITTED PRE- 1.1.1957
Rape was originally an oence at common law.
1. Denition
Unlawful carnal knowledge of a woman without her consent by force, fear or fraud.5
1 SOA 1956, s 1, commencement date 1.1.1957.
2 SO(A)A 1976, s 1(1), commencement date 22.12.1976.
4 Criminal Justice and Public Order Act (CJPOA) 1994, s 142, commencement date 3.11.1994.
5 East PC 434.
2.01
2.02
2.03
.
Proof
(i) Carnal knowledge: penile penetration of the vagina, even the slightest penetration was suf-
cient (proof of hymenal damage is not required). Proof of ejaculation is not necessary.6
(ii) Lack of consent: even if the girl was under 167 her submission is not to be classied as
consent.8 e lack of consent may have been brought about by drink, drugs, sleep, age
or mental handicap, so as to render the complainant incapable of giving consent.9
(iii) Mens rea; proof of intention or recklessness as to consent is required (see para 2.17).
Notes
(i) Triable only on indictment.
(ii) A boy under 14 was presumed by law to be incapable of committing rape as prin-
cipal10 (that is until 1993), but may be guilty of indecent assault11 (see para 3.03.)
(iii) A boy under 14 could not be convicted of an assault with intent to rape.12
(iv) Only a male may be convicted as a principal,13 but a female may be convicted as an
aider and abettor.14
(v) If a woman consents to sexual intercourse then changes her mind during intercourse,
the male may be convicted if he has the requisite mens rea.15
Indictment
RAPE Pre- 1.1.1957
Statement of Oence
RAPE.
Particulars of Oence
D on the . . . day of . . . had carnal knowledge of C without her consent.
Alternative Oences
e following oences constituted alternatives to rape:
(i) CLAA 1885, s 3: procuring delement of a woman or girl by threats, fraud or under
the inuence of drugs: 2 YEARS.
6 R v Marsden [1891] 2 QB 149 and later OAPA 1861, s 63.
10 Hale, e History of Pleas of the Crown, vol I.
11 R v Williams (1893)1 QB 320; CLAA 1885, s 9.
12 R v Williams (ibid).
13 SOA 1956, s 1.
14 R v Ram (1893) 17 Cox CC 609 (in 1893 referred to as principal in second degree).
15 R v Kaitamaki (1985) AC 147 (PC).
2.04
2.05
2.06
2.07
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