Sexual Offences Act 2003

One of the driving forces behind the creation of the familiar Offences venture 2003 was the low execration rate on rapists. In 1999 9,008 rape sides were inform and only 1 in 13 resulted in a conviction . Within this essay I will discuss whether or non the changes introduced by the Sexual Offences conduct 2003 add greater clarity to the compass of rape. In order to experty understand this question one essential first define rape. The standard description of rape is un fair playful k immediatelyledgeable intercourse with a wo homophile who at the epoch of intercourse does non consent . I say standard because with each Sexual wreak the definition of rape has changed in some way. When rape was first introduced as a statutory umbrage in the Offences Against the Person second 1861 it plain stated that it is a felony to rape a muliebrity . The Sexual Offences turn 2003 now defines rape as the intentional penetration of the vagina, anus, or address of some other so ulfulness who does not consent . Each Sexual Offences phone number attempts to further clarify the region of rape. The main change in the Sexual Offences human ventureion 2003 has to deal with the definition and the bea of consent.The Sexual Offences Act of 1956 elaborates to a great extent on the playing area of rape it goes more in depth where rape is concerned than the Offences Against the Person Act 1861. The Sexual Offences Act 1956 states Rape of a man or woman (1)It is an offence for a man to rape a woman or another(prenominal) man. (2)A man commits rape if (a)he has inner intercourse with a person (whether vaginal or anal retentive) who at the time of the intercourse does not consent to it and (b)at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it. 3)A man also commits rape if he induces a wed woman to shake inner intercourse with him by impersonating her husband. (4)Subsection (2) ap plies for the purpose of each en meetment. Like Offences Against the Person Act 1861, this go also failed to clarify or to give further direction on the matter of consent. Thus, it was still up to the judiciary to determine the constituent elements and develop the f trifleors that might vitiate an unmistakable consent. In 1975 the case of DPP v Morgan prompted Parliament to amend this mask in order to attempt to clarify the area of consent.The amendment to this sham is found in the Sexual Offences Act 1976. This act states (1)For the purposes of section 1 of the M1Sexual Offences Act 1956 (which relates to rape) a man commits rape if (a)he has unlawful intimate intercourse with a woman who at the time of the intercourse does not consent to it and (b)at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it and references to rape in other enactments (including the following provisions of this Act) sh totally be constr ued accordingly. 2)It is herewith declared that if at a trial for a rape offence the instrument panel has to consider whether a man believed that a woman was go for to sexual intercourse, the presence or absence of likely grounds for such(prenominal) a persuasion is a matter to which the jury is to have need, in conjunction with whatever other pertinent matters, in considering whether he so believed. In the case of DPP v Morgan the husband invited three friends over to have intercourse with his wife. He told them that she might be acting like she was resisting barely she was actually just role playing.Though the wife struggled against them they still had sex with her because they were under the tenet that she had consented. They were tried with rape. The judges remark to the jury evidently was if you believe that the wife did not consent consequently the suspects belief that she did indeed consent is not a defense. They were all convicted of rape. Due to the bewildermen t ca utilise by this case section 1(2) (as line of battlen above) of the Sexual Offences Act 1976 was created. This gives a definition of mens rea in regards to consent .Although this act tried to further clarify consent and the meaning of rape on that point were still some tweaking that had to be do to it. For instance it defines rape exclusively it doesnt establish the need to show that there was force, forethought, or fraud affecting the womans consent. The control panel was just instructed to give consent its ordinary meaning. That being stated this act also failed to provide a legal definition of consent. All of these changes were make in the Sexual Offences Act 2003. The Sexual Offences Act 2003 states Rape (1) A person (A) commits an offence if a) he designedly 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 jolly believe that B consents. (2) Whether a belief is reasonable is to be fixed having regard to all the circumstances, including any steps A has taken to curb whether B consents. (3) slits 75 and 76 apply to an offence under this section. (4) A person criminal of an offence under this section is liable, on conviction on indictment, to imprisonment for life. Although these changes were made does it actually add clarity to the area of rape?The first change that must be mentioned is the inclusion of oral as a head where penetration put forward occur. This was included because it was refractory that oral sex was just as abhorrent demeaning and traumatizing a violation and equally, if not more psychologically harmful than vaginal and anal rape . Secondly, section 1(1) of this act makes rape gender specific. Since it states that penetration must be done with a penis consequently only males support commit rape. Thus, women shadowernot legally be charged with rape but if they act as an accomplice of a male rapist then they muckle be charged with ca employ a person to engage in sexual activity .Although this section shows that a woman cannot be a rapist section 79(3) which state, references to a part of the body include references to a part surgically constructed (in particular, through gender reassignment surgery), is a deviation of this find this shows that if it is a transsexual, who committed penile surgery then she can be charged with rape, for rape is the penetration of the penis, whether it is a surgically constructed penis or a natural one. It does not matter the gender of who is raped or that of the rapist .Those with surgically constructed vaginas can also be raped as per R v Matthews . Thirdly, the actus reus for rape is no longer unlawful sexual intercourse. In the previous Sexual Acts 1956 and 1976 unlawful intercourse was the actus reus. Unlawful meant sexual intercourse outside of marriage. This was discovered to be a common law action as per R v R , and was abolished. Now a husband can rape his wife. The a ctus reus for rape according to the Sexual Offences Act 2003 is penetration . In accordance with this act in order for it to be rape several elements must be meet.Firstly, it has to be turn out that the vagina, anus or mouth was intentionally penetrated by the defendant. The mens rea for rape is the intentional penetration. Once penetrated it is survey that intent is there unless the penetration is minimal. In that case it can be argued that the defendant only meant to stay on the outside . Intoxication cannot be used as a defense as per R v Woods , due to the fact that rape is still a offence of basic intent. Before this act the actus reus for rape was unlawful intercourse (outside marriage)it is now penetration. arm 79(2) defines penetration as a continuing act from entre to withdrawal , as per Cooper v Schaub . For it to be penetration full entry is not necessary. Thus, the vagina includes the vulva this is explained in section 79(9), which simply states that Vagina includes vulva As per R v Tarmohammed the penis should be removed if at any point consent is withdrawn. This brings me to my next point that of consent. Secondly, it has to be determined whether or not the victim gave consent. Section 74 defines consent as a person freely agreeing by preference and who has the freedom and power to make that choice . The phrase capacity to make a choice is a silklike phrase especially if one is dealing with a person with a amiable disorder. To help clarify this in the Offences related to persons with a mental disorder section 30(2) is used. This states B is unable to refuse if He lacks the capacity to choose whether to agree to the touching (whether because he lacks sufficient understanding of the constitution or possible consequences of what is being done, or for any other reason), or he is unable to communicate such a choice to A. thusly if one does not understand the complete nature of the act then they cannot consent as per R v Williams . More c larification on whether or not a woman has consented is given by sections 75 and 76 of the Sexual Offences Act 2003. These sections each contain a arrogance about consent. Section 75 contain evidential presumption which may be challenged by the defendant, whereas, section 76 cannot be challenged as it is definitive presumptions . The evidential burden is not a burden of proof it simply authority that the defendant needs to provide some show that supports his case.Section 75 states (1) If in proceedings for an offence to which this section applies it is proved (a) that the defendant did the pertinent act, (b) that any of the circumstances specified in arm (2) existed, and (c) that the defendant knew that those circumstances existed, If (a), (b), and (c) are proved by the prosecution then it can be assumed that the victim did not consent to the act nor did the wrongdoer reasonably believe that he had consent. If the judge does not think that the evidence is enough to raise an issue then the jury is instructed to look at section 75(2) . This states The circumstances are that a) any person was, at the time of the applicable act or immediately before it began, using force-out against the complainant or causing the complainant to fear that immediate madness would be used against him (b) any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person (c) the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act (d) the complainant was asleep or otherwise unconscious at the time of the relevant act (e) because of the complainants physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented (f) any person had administered to or caused to be taken by the complainant, without the complainants consent, a affection which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act. (3) In subsection (2)(a) and (b), the reference to the time immediately before the relevant act began is, in the case of an act which is one of a continuous series of sexual activities, a reference to the time immediately before the first sexual activity began. When looking at sections 75(2)(a) and (b) violence is not given a legal definition here but uses its normal definition. Violence is any action using physical force intended to hurt, damage, or wipe out . The one who does the act does not have to be the one that used violence in coercing the victim. In regards to section 75(2)(d) if one is asleep they then cannot give consent to the act as per R v Larter and Castleton . When dealing with section 75(2)(e) if one cannot communicate it may be due to a physical or mental d isability. In regards to section 75(2)(f) if the offender knew that the substance used would render the victim overpowered then he can be charged with rape. The conclusive presumptions found in section 76 are (1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed (a) that the complainant did not consent to the relevant act, and (b) that the defendant did not believe that the complainant consented to the relevant act. (2) The circumstances are that (a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act (b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant. This simply means that if the offender intentionally deceives the victim in regards to what the act is which is taken s eat or to who he is then the consent is not valid. Thirdly, it has to be proven that the offender did not reasonably believe that the victim consented. Consent of clean but flawn belief is not available where due to self-induced intoxication, there was recklessness as to consent, or where D failed to take all reasonable steps that might be expected in the circumstances. In the case of DPP v Morgan it was decided that a person would not be guilty of rape if they had an honest belief that the victim did indeed consent.With the Sexual Offences Act section 1(2) it is no longer as simple as that. Section 1(2) states Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents. The offender may in fact have made an honest fracture in regards of consent but it must be decided if the mistake was a reasonable one. This is left up to the jury to determine using a subjective approach. This means that the jury must look at all the facts including the offender characteristics, thus, giving a subjective view. In conclusion, it is my belief that the Sexual Offences Act 2003 does add a greater clarity to the area of rape.When one look at the previous Sexual Acts and compare them with the ongoing act it is easy to see the changes that has been made Not only can a biological male commit the act of rape but now a transgender individual can as well. Due to this act rape now entails oral sex and consent is given a legal definition. Section 75 and 76 of the act helps to further clarify the area of consent. Thanks to the changes made in this act the elements for rape are now more defined. ? BIBLIOGRAPHY Card, Richard (2008) Card, Cross, and Jones Criminal Law. sassy York, Oxford University Press Cooper v Schaub 1994 Crim LR 531 DPP v Morgan 1976 A. C. 182 Martin ,A, Elizabeth. ed)(2006) Oxford dictionary of Law. parvenu York, Oxford University Press Office of Public domain Informat ion. The UK Statute law Database. (online) available from http//www. opsi. gov. uk/ (Accessed 3rd April 2009) R v R 1993 1 All ER 747 R v Larter and Castleton 1995 Crim LR 75 R v Tarmohammed 1997 Crim LR 458 R v Williams 1992 All ER 322 R v Woods (1981) 74 Cr App R 312 Soanes, Catherine. (ed)(2007) Oxford English Mini Dictionary. New York, Oxford University Press Stevenson, Kim. et al (2004) Blackstones Guide to The Sexual Offences Act 2003. New York, Oxford University Press Tomaselli, Sylvana. , Porter Roy (ed)(1986) RAPE. New York, Basil Blackwell Ltd.