12/02/24

Rape | Sexual Offences Act 2003 | KANGS Sexual Offences Defence Solicitors

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Rape and ‘sexual assault’ are two types of extremely serious sexual offences.

Rape occurs when one person, without consent, intentionally penetrates the vagina, anus or mouth of the other with his penis. Assault by penetration involves one person penetrating, without consent, the vagina or anus of another with any part of the body other than a penis, or by using an object.

Accordingly, by virtue of the difference in definition, only men can commit the offence of rape.

Helen Holder of KANGS Solicitors outlines the offence of rape which is covered by the Sexual Offences Act 2003 (‘the Act’).

KANGS has been defending clients in police investigations involving serious sexual offences for well over twenty years and is rated as one of the best criminal law firms in the country, being ‘Top Ranked’ in the leading legal directories, The Legal 500 and Chambers UK.

The Team is led by founding and senior partner, Hamraj Kang, who is recognised as a ‘Hall of Fame’ criminal lawyer by the Legal 500.

Should You require any initial advice, our team can be contacted as follows:

The Relevant Law | The Offence

The Act states, at section 1, that a person commits the offence if:

  • he intentionally penetrates the vagina, anus or mouth of another person with his penis,
  • the other person does not consent to the penetration, and
  • he could not reasonably believe that the other person consented.

Where the accused claims that the complainant consented, his alleged belief has to be determined having regard to all the circumstances, including any steps he took to ensure the validity of such consent.

Points of Note:

  • The offence of rape is a crime of basic intent. The Prosecution needs only to prove that the accused intended to commit the act in question and not necessarily any specific outcome or consequence.
  • By virtue of the definition of rape, involving penetration by a penis, women cannot commit acts of rape and can only be convicted of rape as an accomplice.
  • The presence and effects of alcohol or drugs does not provide a defence to the crime.
  • Where penetration occurs in more than one orifice, the Prosecution may seek to charge each penetration as a separate count of rape.

The Relevant Law | Freedom and Capacity to Consent

Section 74 of the Act states that ‘a person consents if he agrees by choice, and has the freedom and capacity to make that choice’.

Situations in which a complainant may not have the freedom include those where:

  • rape occurs as part of domestic abuse,
  • the suspect was in a position of power enabling abuse of trust, e.g. employer, teacher or family member,
  • there was dependency on the suspect, e.g. financially or for care,
  • the suspect was significantly older.

A complainant may not have the capacity when:

  • under the influence of drink or drugs. In 2007, the Court of Appeal  in the case of R v Bree [2007] EWCA Crim 804 determined that if a victim had temporarily lost their ability to consent, because of the effects of drink and/or drugs, then they were not consenting
  • suffering from a medical condition limiting the ability to consent or communicate consent,
  • asleep or unconscious.

The Relevant Law | Evidential Presumptions of Consent

Sections 75 of the Act provides evidential presumptions about consent.

Where this section applies, and it is proved that:

  • the defendant committed the relevant act,
  • any of the circumstances specified below existed, and
  • the defendant knew that those circumstances existed,

the complainant is to be taken not to have consented unless there is sufficient evidence to the contrary.

The specified circumstances are that the complainant:

  • was suffering violence, or the threat of violence,
  • feared that violence was being used, or that immediate violence would be used, against another person,
  • was, and the defendant was not, unlawfully detained at the time of the relevant act,
  • was asleep or otherwise unconscious at the time of the relevant act,
  • was, because of physical disability, unable to communicate consent or otherwise,
  • had been administered, without consent, a substance which was capable of causing or enabling the complainant to be stupefied or overpowered at the relevant time.

The Relevant Law | Conclusive Presumptions of Consent

Section 76 of the Act deals with conclusive presumptions.

Where it is proved that the defendant committed the relevant act, it is to be conclusively presumed that:

  • the complainant did not consent, and
  • the defendant did not believe that the complainant consented

in the circumstances where the defendant intentionally:

  • deceived the complainant as to the nature or purpose of the relevant act;
  • induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.

Sentencing Upon Conviction | KANGS Criminal Courts Solicitors

Rape is an indictable only offence and can only be tried in a Crown Court.

Upon conviction a defendant may be sentenced to imprisonment for life.

Where imprisonment for life is not deemed appropriate, the Sentencing Guidelines, to which a Sentencing Judge must have regard, provide for terms of imprisonment for periods of between four and nineteen years, depending upon the circumstances of each case.

How Can We Assist? | KANGS National Criminal Defence Solicitors

An allegation of rape is extremely serious and conviction may result in life changing consequences for the defendant.

The Team at KANGS offers enormous experience in defending sexual offences allegations of every nature including rape.

Should you be faced with any allegations of criminal conduct of any nature, it is essential that you seek immediate professional advice and guidance.

The Team at KANGS would be delighted to hear from you and we welcome enquiries by:

Email: info@kangssolicitors.co.uk

Telephone: 0330 370 4333

Hamraj Kang

Hamraj Kang
Senior Partner

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Helen Holder

Helen Holder
Partner

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Sukhdip Randhawa

Sukhdip Randhawa
Legal Director

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