Rape in English law - AbsoluteAstronomy.com

Statute

The offence is created by section 1 of the Sexual Offences Act 2003

Sexual Offences Act 2003

The Sexual Offences Act 2003 is an Act of the Parliament of the United Kingdom of Great Britain and Northern Ireland that was passed in 2003 and became law on 1 May 2004.It replaced older sexual offences laws with more specific and explicit wording...

Consent, s.1(1)(b) & (c) & (2)

This expression is defined by section 74. The evidential and conclusive presumptions created by sections 75 and 76 apply to this offence (s.1(3)). They must be read with section 77.

Capacity

A man or woman assisting a man commit a rape can be prosecuted for the crime as an accessory.

Sentence

A person guilty of rape is liable on conviction to imprisonment for life or for any shorter term.

Crown Prosecution Service sentencing manual

Relevant Cases

R v Billam (1986) 8 Cr.App.R.(S) 48
R v Millberry [2002] EWCA Crim 2891, [2003] Crim LR 207, [2003] 2 Cr App R(S) 31, [2003] 2 All ER 939, [2003] 2 Cr App R (S) 31, [2003] 1 WLR 546, [2003] 1 Cr App R 25.
R v Corran and others [2005] 2 Cr App R (S) 73, [2005] 2 Cr App R (S)73, [2005] EWCA Crim 192
R v Abokar Ahmed Ismail [2005] 2 Cr.App.R.(S) 88
A-Gs Reference No. 86 of 2005 (Christopher James S.) 2 Cr.App.R.(S)

Rape of a child under 13

This is a statutory offence created by section 5 of the Sexual Offences Act 2003

Sexual Offences Act 2003

.
Any consent of the complainant is of no relevance if he or she is under the age of thirteen.

Loss of service

No person is liable in tort

Tort

A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...

under the law of England and Wales

England and Wales

England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...

to a parent (or person standing in place of a parent) on the ground only of his having deprived the parent (or other person) of the services of his or her child by raping that child; or
on the ground only of having deprived another of the services of his female servant by raping her.

History

Rape was an offence under the common law

Common law

Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

of England

England

England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...

and was classified as a felony

Felony

A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...

.

The common law defined rape as "the carnal knowledge

Carnal knowledge

Carnal knowledge is an archaic or legal euphemism for sexual intercourse. The term derives from the Biblical usage of the verb know/knew, as in the King James and other versions, a euphemism for sexual conduct...

of a woman forcibly and against her will." The common law defined carnal knowledge as the penetration of the female sex organ

Sex organ

A sex organ, or primary sexual characteristic, as narrowly defined, is any of the anatomical parts of the body which are involved in sexual reproduction and constitute the reproductive system in a complex organism; flowers are the reproductive organs of flowering plants, cones are the reproductive...

by the male sex organ (it covered all other acts under the crime of sodomy

Sodomy

Sodomy is an anal or other copulation-like act, especially between male persons or between a man and animal, and one who practices sodomy is a "sodomite"...

). The crime of rape was unique in the respect that it focused on the victim's state of mind and actions in addition to that of the defendant. The victim was required to prove a continued state of physical resistance, and consent was conclusively presumed when a man had intercourse with his wife

Wife

A wife is a female partner in a marriage. The rights and obligations of the wife regarding her spouse and others, and her status in the community and in law, varies between cultures and has varied over time.-Origin and etymology:...

. "One of the most oft-quoted passages in our jurisprudence" on the subject of rape is by Lord Chief Justice Sir Matthew Hale from the 17th century, "rape...is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent." Lord Hale is also the origin of the remark, "In a rape case it is the victim, not the defendant, who is on trial." However, as noted by Sir William Blackstone

William Blackstone

Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...

in his Commentaries on the Laws of England
Commentaries on the Laws of England
The Commentaries on the Laws of England are an influential 18th-century treatise on the common law of England by Sir William Blackstone, originally published by the Clarendon Press at Oxford, 1765–1769...

, by 1769 the common law had recognized that even a prostitute

Prostitution

Prostitution is the act or practice of providing sexual services to another person in return for payment. The person who receives payment for sexual services is called a prostitute and the person who receives such services is known by a multitude of terms, including a "john". Prostitution is one of...

could suffer rape if she had not consented to the act.

The death penalty for rape was provided by section 16 of the Offences against the Person Act 1828

Offences Against the Person Act 1828

The Offences against the Person Act 1828 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...

. The death penalty for rape was abolished by section 3 of the Substitution of Punishments for Death Act 1841 which substituted transportation

Penal transportation

Transportation or penal transportation is the deporting of convicted criminals to a penal colony. Examples include transportation by France to Devil's Island and by the UK to its colonies in the Americas, from the 1610s through the American Revolution in the 1770s, and then to Australia between...

for life. Transportation was abolished by the Penal Servitude Act 1857, which substituted penal servitude for life. These sections were replaced by section 48 of the Offences against the Person Act 1861

Offences Against The Person Act 1861

The Offences against the Person Act 1861 is an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...

. Penal Servitude was abolished by the Criminal Justice Act 1948

Criminal Justice Act 1948

The Criminal Justice Act 1948 is an Act of the Parliament of the United Kingdom. It has been described as "one of the most important measures relating to the reform of the criminal law and its administration." It abolished penal servitude, hard labour and prison divisions for England and Wales...

, which substituted imprisonment for life. These sections were replaced by sections 1(1) and 37(3) of, and paragraph 1(a) of the Second Schedule to the Sexual Offences Act 1956

Sexual Offences Act 1956

The Sexual Offences Act 1956 is an Act of the Parliament of the United Kingdom that consolidated the English criminal law relating to sexual offences between 1957 and 2004. It was mostly repealed by the Sexual Offences Act 2003 which replaced it, but sections 33 to 37 still survive. The 2003 Act...

.

The final paragraph of section 4 of the Criminal Law Amendment Act 1885

Criminal Law Amendment Act 1885

The Criminal Law Amendment Act 1885 , or "An Act to make further provision for the Protection of Women and Girls, the suppression of brothels, and other purposes", was the latest in a 25-year series of legislation in the United Kingdom beginning with the Offences against the Person Act 1861 that...

provided that it was rape for a man to have carnal knowledge

Carnal knowledge

of a married woman by impersonating her husband. This provision was replaced by section 1(2) of the Sexual Offences Act 1956

Sexual Offences Act 1956

.

Rape ceased to be a felony on 1 January 1968 as a result of the abolition of the distinction between felony and misdemeanour by the Criminal Law Act 1967

Criminal Law Act 1967

The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom. However, with some minor exceptions, it generally applies to only England and Wales. It made some major changes to English criminal law...

.

The definition of rape at common law was discussed in DPP v. Morgan [1976] AC 182, [1975] 2 WLR 913, [1975] 2 All ER 347, 61 Cr App R 136, [1975] Crim LR 717, HL.

A statutory definition of "rape" was provided by section 1 of the Sexual Offences (Amendment) Act 1976

Sexual Offences (Amendment) Act 1976

The Sexual Offences Act 1976 is an Act of the Parliament of the United Kingdom. It made provision in relation to rape and related offences. Except for subsections and and and of section 7, the whole Act is repealed. Section 7 now provides the definition of the expression "a rape offence" in...

. This was intended to give effect to the Report of the Advisory Group on the Law of Rape (Cmnd 6352) and to the opinions expressed by the House of Lords

House of Lords

The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....

in DPP v. Morgan.

It read:
In R v R it was held that the word "unlawful" in that section did not exclude "marital rape" (see Marital rape#Ending the exemption in England and Wales).

Section 1 of the Sexual Offences Act 1956

Sexual Offences Act 1956

was substituted on the 3 November 1994 by section 142 of the Criminal Justice and Public Order Act 1994

Criminal Justice and Public Order Act 1994

The Criminal Justice and Public Order Act 1994 is an Act of the Parliament of the United Kingdom. It introduced a number of changes to the existing law, most notably in the restriction and reduction of existing rights and in greater penalties for certain "anti-social" behaviours...

, providing a new and broader definition:
The effect of this was to make what is termed male rape amount to the offence rape instead of (where it took place in private and both parties were over 18 - s.12(1A) as substituted) or in addition to (in all other cases) the offence of buggery

Buggery

The British English term buggery is very close in meaning to the term sodomy, and is often used interchangeably in law and popular speech. It may be, also, a specific common law offence, encompassing both sodomy and bestiality.-In law:...

. The first person to be convicted of this form of the offence was Andrew Richards on 9 June 1995. The word "unlawful" did not appear in this section because of R v R.

That section was replaced on 1 May 2004 by section 1 of the Sexual Offences Act 2003

Sexual Offences Act 2003

, providing a still broader definition. References to vaginal or anal sexual intercourse were replaced by references to penile penetration of the vagina, anus or mouth. It also altered the requirements of the defence of mistaken belief in consent so that one's belief must be now both genuine and reasonable. Presumptions against that belief being reasonably held also now apply when violence is used or feared, the complainant is unconscious, unlawfully detained, drugged, or is by reason of disability unable to communicate a lack of consent. The change in this belief test from the old subjective test (what the defendant thought, reasonably or unreasonably) to an objective test was the subject of some debate (see http://www.publications.parliament.uk/pa/ld200203/ldhansrd/vo030331/text/30331-15.htm and http://www.publications.parliament.uk/pa/cm200203/cmselect/cmhaff/639/63905.htm#a3), as it permits a man to be convicted of rape if he thought a person was consenting, were the circumstances thought by a jury to be unreasonable.

Capacity

At common law a boy under the age of fourteen years could not commit rape as a principal offender as he was irrebutably presumed to be incapable of sexual intercourse. This rule was abolished by section 1 of the Sexual Offences Act 1993

Sexual Offences Act 1993

The Sexual Offences Act 1993 is an Act of the Parliament of the United Kingdom that abolished the presumption that a boy under the age of fourteen is incapable of sexual intercourse. Under the Sexual Offences Act 2003, if a boy under the age of fourteen intentionally penetrates a woman's vagina...

. A boy under the age of fourteen years could commit rape as an accomplice.

It was never decided whether a boy under fourteen could be convicted of attempting to commit rape as a principal, rather than an accomplice, if he attempted to have sexual intercourse or actually succeeded in doing so. The reported dicta did not agree on this point.

A woman could not commit rape as a principal offender, by the nature of the offence, but she could commit rape as an accomplice.

Attempt

Section 37(3) of, and paragraph 1(b) of the Second Schedule to, the Sexual Offences Act 1956

Sexual Offences Act 1956

provided that a person guilty of an attempt

Attempt

Attempt was originally an offence under the common law of England.Attempt crimes are crimes where the defendant's actions have the form of the actual enaction of the crime itself: the actions must go beyond mere preparation....

to commit rape was liable to imprisonment for a term not exceeding seven years. Attempted rape became a statutory offence under section 1(1) of the Criminal Attempts Act 1981

Criminal Attempts Act 1981

The Criminal Attempts Act 1981 is an Act of the Parliament of the United Kingdom. It applies to England and Wales and creates criminal offences pertaining to attempting to commit crimes...

. But the maximum penalty was not affected by this. The maximum penalty for attempted rape was increased to imprisonment for life by sections 3(1) and (2) of the Sexual Offences Act 1985

Sexual Offences Act 1985

The Sexual Offences Act 1985 was an Act of the Parliament of the United Kingdom that created two offences concerning prostitution, and increased the maximum sentence for attempted rape from 7 years to life imprisonment....

.

In the Sexual Offences (Amendment) Act 1976

Sexual Offences (Amendment) Act 1976

, the expression "a rape offence" included:

attempted rape
aiding, abetting, counselling and procuring attempted rape

Compensation

Special provision was made in relation to rape by sections 109(3)(a) and 111(6) of the Criminal Justice Act 1988.

External links

Rape Crisis (England and Wales)

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Statute

Consent, s.1(1)(b) & (c) & (2)

Capacity

Sentence

Relevant Cases

Rape of a child under 13

Loss of service

History

Attempt

Compensation

See also

External links