A rape occurs in circumstances where a person does not consent to penetration of the vagina, mouth or anus by a penis, finger, tongue or object. It is not a defence that the penetration was only be partial or for very short time.
From July 1 2015, new legislation applies to Rape and Sexual Offences. The act is not retrospective, which means that offences which occur before this date will be prosecuted under the previous legislation.
The legislation amends the current structure of sexual offences and introduces the following range of charges:
- Rape by compelling sexual penetration
- Sexual assault
- Sexual assault by compelling sexual touching
- Assault with intent to commit a sexual offence
- Threat to commit a sexual offence
It also provides for a number of circumstances in which a person does not consent to an act. They include where:
- The person submits because of force or the fear of force / harm, to themselves or someone else or an animal
- The person submits because they are unlawfully detained
- The person is asleep or unconscious
- The person is so affected by alcohol or drugs as to be incapable of consenting
- The person is incapable of understanding the sexual act
- The person is mistaken about the sexual nature of the act
- The person is mistaken about the identify of any other person involved in the act
- The person believes that the act is for medical or hygienic purposes
Whereas previously the prosecution was required to establish that the accused was ‘aware’ that the victim was not, or might not be consenting, under the new legislation the prosecution must prove that the accused did not reasonably believe that the complainant was consenting.
This new fault element is an objective test, which means that the accused’s belief will be judged “in the light of generally accepted community standards and attitudes”. The prosecution can therefore establish their case either by showing that the accused did not hold any belief that the victim was not consenting, or that if they did hold such a belief, it was unreasonable in all the circumstances.
These circumstances include, but are not limited to, any steps that the person has taken to ascertain whether the other person is consenting to the act or would consent to the act.
Importantly, the legislation sets out that where the accused was intoxicated, regard must be had to the standard of a reasonable person who is not intoxicated and is otherwise in the same circumstance as that person.
Other Sexual Offences
A person can also be charged with in relation to sexual penetration where they cause another person to penetrate the victim, or the victim to penetrate themselves.
A person can also be charged with sexual assault in cases of sexual touching. The same test applies with respect to reasonable belief. Further, it is not a defence to sexual assault if the defendant was under a mistaken but reasonable belief that the touching was not sexual.
Sexual assault by compelling sexual touching is a separate offence which covers cases where a defendant has caused another person to touch the defendant, themselves or another person.
For the charges above, ‘touching’ can be sexual on account of the area of the body being touched or the fact that the person doing the touching seeks or gets sexual gratification from the touching. It does not have to be direct touching and can be through anything (for example bed sheets).
If you have been charged with rape or sexual offences, receiving expert legal advice is imperative. Not only are there harsh penalties for these offences, but persons found guilty may be placed on the ‘Sexual Offenders Register’.