Rape

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Statute

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

1-(1) A person (A) commits an offence if—

(a) he intentionally 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 reasonably believe that B consents.

(2) 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.

(3) Sections 75 and 76 apply to an offence under this section.(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.

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Mode of Trial

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Indictable Only

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Statutory Limitations & Maximum Penalty

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Life imprisonment

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Culpability & Harm

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All non-consensual offences involve the violation of the victim's sexual autonomy and will result in harm.

The seriousness of the violation may depend on a number of factors, but the nature of the sexual behaviour will be the primary indicator of the degree of harm caused in the first instance.

The extreme youth or old age of a victim should be an aggravating factor. In addition, in principle, the younger the child and the greater the age gap between the offender and the victim, the higher the sentence should be. However, the youth and immaturity of the offender must also be taken into account in each case.

All the non-consensual offences involve a high level of culpability on the part of the offender, since that person will have acted either deliberately without the victim's consent or without giving due consideration to whether the victim was able to or did, in fact, consent.

The planning of an offence indicates a higher level of culpability than an opportunistic or impulsive offence .

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INTRO to Aggravating & Mitigating Factors

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It should be borne in mind these lists are non-exhaustive and the factors are not linked in any particular order.

Where a factor is an ingredient of an offence or is used to identify a starting point, it cannot also be an aggravating factor and care will be necessary to avoid double counting.

Since sexual offences often involve some form of violence as an essential element of the offence, this is included in the starting points.

However, it will be an aggravating feature if harm was inflicted over and above that necessary to commit the offence.

The guideline judgment in Millberry and others established the principle that sentencers should adopt the same starting point for 'relationship rape' or 'acquaintance rape' as for 'stranger rape'.

The Council has determined that the same principle should apply to all non-consensual offences.

Any rape is a traumatic and humiliating experience and, although the particular circumstances in which the rape takes place may affect the sentence imposed, the starting point for sentencing should be the same.

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Aggravating:

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Offender ejaculated or caused victim to ejaculate.

Background of intimidation or coercion.

Use of drugs, alcohol or other substance to facilitate the offence,

Threats to prevent victim reporting the incident.

Abduction or detention.

Offender aware that he is suffering from a sexually transmitted infection,

Pregnancy or infection results.

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Mitigating:

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Victim engaged in consensual sexual activity with the offender on the same occasion and immediately before the offence

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R v Billam (1986)

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Guidance on attempted rape:

The starting point for attempted rape should normally be less than the completed offence especially if it is desisted at a comparatively early stage. But attempted rape may be made by aggravating features into an offence even more serious than some examples of the full offence.

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R v Millberry [2003]

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Guidance on a range of different situations:

It also states the courts should consider:

The degree of harm to the victim.

The level of culpability of the offender,

The level of risk proposed by he offender to society.

While rape will always be a most serious offence, it's gravity will depend very much upon the circumstances of the particular case.

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Att Gen's Ref No. 6 of 2002, 2003

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Where aggravating features have to be taken into account there is no artificial limit beyond which the court cannot go in reflecting those aggravating features.

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R v Corran and others [2005]

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For the rape of a child under 13 no precise guidance can be give. The appropriate sentence is likely to lie within a very wide bracket.

There will be very few cases in which immediate custody is not called for, even in relation to a young offender.

There will be some offences, for example where there is no question of consent and where significant aggravating features... Are present, where a long determinate sentence or a life sentence will be called for.

Although absence of consent is not an ingredient of the offence, presence of consent is... material in relation to sentence particularly in relation to young defendants.

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AGs Reference No. 86 of 2005

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Even on a guilty plea sentence should be a minimum of 5 years for rape of 3 year old niece. Defendant 23, mild learning difficulties, with only one caution for a dissimilar offence.

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Masood (1997

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The court declined to take any notice of the fact the victims were prostitutes. It seems this approach is preferred to the earlier decision of Cole 1993,

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R v W 1993

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It should not be thought a different and lower scale automatically attaches to the rape of a wife by her husband.

All will depend upon the circumstances of the case.

Where the parties are cohabiting and the husband insisted upon intercourse against his wife's will but without violence or threats this may reduce sentence.

Where the conduct is gross and involves threats or violence the relationship will be of little significance.

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R v Cadogan 2010

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A sustained attack where sexual violence was used to punish, degrade and humiliate. Held it merited a severe sentence, extended sentence made up of 9 years custodial term and 3 year licence.