Rape as a Sexual Offence under Sexual Offences Act 2003

Introduction

Rape refers to sexual assault, often including penetration and sexual intercourse, which are carried out against an individual without consent (Bhamjee et al., 2016). Besides, for penetration to amount to rape, it must be carried out via physical force or to an individual unable to give valid consent. Therefore, in the United Kingdom, rape is a criminal offense under the Sexual Offences Act 2003. The legislation defines various types of sexual misconduct; however, it defies rape as an offense under section 1 and makes it unlawful for an individual to rape another individual. Rape case also includes the actus reus, which is a sexual act with a woman without her consent. At the same time, the prosecution should always prove that the defendant did not provide consent to the penetration. Therefore, this paper will define the actus reus of rape and the text that, "The prosecution must always prove that the defendant did not provide consent to the sexual act. If you require criminology dissertation help, understanding the nuances of all sexual offenses like rape, and their legal implications, our experts are there to provide the most comprehensive assistance.

The Actus Reus

The actus reus refers to an offense of penetration of the anus or vagina of another individual with the accused body part. In the violation, the mens rea/criminal intent of the crime is the penetration and absence of a reasonable belief that the victim had consent. Under section 74, valid consent is achieved where individuals agree by choice or have the freedom to choose. For instance, in R v Benjamin Bree [2007] 2 All ER 676, the appeal court held that when an individual has voluntarily consumed alcohol, they are still capable of deciding to have intercourse or not (Kemshall & McCartan, 2014). Therefore, if they agreed to do intercourse while intoxicated, that does not amount to rape. However, when the accused has the men's rea while intoxicated, that amounts to rape and will be guilty of the crime. Thus voluntary intoxication is no defense to rape. The actus reus of rape also cover non-consensual oral sex. SOA 2003 also requires clear evidence of penetration (s. 79(9). At the same time, SOA 2003 also holds that rape can apply to those who have undergone gender reassignment surgery.

Consent to a Penetration

In the Sexual Offences Act 2003, the prosecution should prove that the defendant did not provide any reasonable consent to the penetration. Rape is defined as sexual penetration by force and without the permission of the victim. Therefore, in a case of law, police should ask the suspect to interrogate the step they took to satisfy him or herself. The law requires that the prosecution side proves to the court that the victim did not consent to the penetration. Therefore, studies show that the prosecution must prove that the suspect did not genuinely consent to the penetration (Gunby et al., 2010). When the suspect reveals that they consented, it is the jury's role to decide if the consent was reasonable. Therefore, the nature of that evidence of consent is depended on the circumstances of the case. For example, when an individual is suffering from mental disorders, the consent might not be reasonable. Similarly, where the complainant was asleep or unconscious, they cannot give consent to sexual intercourse.

However, under the Sexual Offences Act 2003, an individual must provide consent for sexual intercourse. According to the law, consent is defined under section 74 as when one agrees by choice and can choose. Consent is considered when the complainant could make a choice. Also, the prosecutor must prove that the victim was able to make a choice freely and not constrained. Also, the prosecution must prove that the complainant agrees to the activity by choice. However, there is always challenging to confirm if the complainant was conscious or not and if the victim is impacted by drugs or alcohol. Also, the law notes that the complainant is perceived not to have consented if the complainant was asleep or unconscious at the period of intercourse. However, studies reveal that it is inaccurate to include sleep as a matter of 'vitiates' consent (Gunby et al., 2010). Similarly, there is confusion within the legislation in that, regardless of alcohol and drugs being a factor that might impact consent, the trial judge must direct the jury to differentiate between those situations when drugs or alcohol creates a lack of inhibition. There are circumstances when an intoxicated person cannot consent; thus, the jury should estimate the complainant’s inability to comprehend. Therefore, the most challenging hurdle for the prosecution under this legislation is to prove beyond doubt that the complainant could not reasonably resist and could not give consent. For instance, in R v Heard [2007] 3 WLR 475, the Court of Appeal required proof that the defendant's touching was "intentional” (Kemshall & McCartan, 2014). Also, the court held that Claire's positive to Len kiss does not necessarily mean that she consented to sexual penetration. Therefore, in the definition of consent, the jury must determine whether the complainant consented, which creates a burden to the judicial system.

Conclusion

Rape refers to penetration and sexual intercourse, which are carried out against an individual without consent. Rape is a criminal offense under the Sexual Offences Act 2003. Rape case also includes the actus reus, which is defined as is having sex with an individual without consent. At the same time, the prosecution must always prove that the defendant did not provide consent to the penetration. However, the jury must determine whether the complainant consented, which creates a burden to the judicial system.

References

Bhamjee, S., Essack, Z. and Strode, A.E., 2016. Amendments to the Sexual Offences Act dealing with consensual underage sex: Implications for doctors and researchers. The Journal of Criminal Law, 106(3), pp.256-259.

Gunby, C., Carline, A. and Beynon, C., 2010. Alcohol-related rape cases: barristers' perspectives on the Sexual Offences Act 2003 and its impact on practice. The Journal of Criminal Law, 74(6), pp.579-600.

Kemshall, H. and McCartan, K., 2014. Managing sex offenders in the UK: Challenges for policy and practice. In Responding to Sexual Offending (pp. 206-226). Palgrave Macmillan, London.

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