definition of rape

What is the current definition of rape in law?

The Sexual Offences Act 2003 (the Act) came into force on the 1 May 2004. It repealed almost all of the existing statute law in relation to sexual offences. The purpose of the Act is to strengthen and modernise the law on sexual offences, whilst improving preventative measures and the protection of individuals from sexual offenders.

N.B. The wording regarding the law on our website uses the terminology that is commonly used in Law and legal proceedings. The offence of Rape (Sec 1(1) SOA 2003) can only be committed by a man; however, a woman can be charged with, or convicted of rape as a secondary party. For example, a woman may be convicted of rape where she facilitated (helped) a man who has raped another person.

The main provisions of the Act include the following:

• Rape is widened to include oral penetration
• Significant changes to the issue of consent and the abolition of the Morgan defence
• Specific offences relating to children under 13, 16 and 18
• Offences to protect vulnerable persons with a mental disorder
• Other miscellaneous offences
• Strengthening the notification requirements and providing new civil preventative orders

What is the definition of consent?

The Act has three important provisions relating to consent. They are:

• A statutory definition of consent
• The test of reasonable belief in consent
• The evidential and conclusive presumptions about consent and the defendant's belief in consent

Section 74 defines consent as "if she agrees by choice, and has the freedom and capacity to make that choice" . In the offences of rape, assault by penetration, sexual assault and causing a person to engage in sexual activity without consent, a person (A) is guilty of an offence if (s)he:

• Acts intentionally;
• (B) does not consent to the act; and
• does not reasonably believe that B consents.

Deciding 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 (subsection (2) of sections 1-4). It is likely that this will include a defendant's attributes, such as disability or extreme youth. This is a major change in the law and the Act abolishes the Morgan defence of a genuine though unreasonably mistaken belief as to the consent of the complainant. It means that the defendant (A) has the responsibility to ensure that (B) consents to the sexual activity at the time in question. It will be important for the police to ask the offender in interview what steps he took to satisfy him that the complainant consented.

What involvement does the rape crisis movement have in law reform?

Rape Crisis was a participant on the external reference group of the Sex Offences Review. The rape crisis movement has also been involved in consultation with the Sentencing Advisory Panel, the Community Justice National Training Organisation, the Women's Unit, the Crime Reduction Programme and HM Crown Prosecution Inspectorate. 

Should accused men be granted anonymity?

We must have anonymity for the victims otherwise women will not come forward to report. Most of the women who contact rape crisis have never reported to the police. We must respect the courage for those who do. It is not easy or pleasant going through all the police interviews and the courts. We must at least retain anonymity.

We must not treat the accused in rape cases any different from murder or child abuse. You cannot have special rules for the accused in rape cases as this will feed the myth that women who report rape are lying, that it is easy to report rape etc.

Anyone accused of rape should not be named until charged with the offence. Sometimes police forces do not adhere to this. On being charged it can be useful for the name of an accused to be published, as other women who have been raped by him, often with the same modus operandi, may be encouraged to report.

The Sexual Offences (Amendment) Act 1976 sections 4 and 5 provide for the anonymity of complainants in rape cases. The Criminal Justice Act 1988 amended the law on anonymity for complainants in rape cases so that anonymity commences when an allegation of rape is made to police and not--as provided in the Sexual Offences (Amendment) Act 1976--when a defendant is formally accused. The 1988 Act also removed the anonymity of defendants in rape cases. There were further additions made in the Sexual Offences (Amendment) Act 1992 and the Youth Justice and Criminal Evidence Act 1999.

What is the maximum sentence?

The maximum sentence for rape is life imprisonment.

What is the average sentence?

This varies widely. The average sentence seems to be around four years although we do know of many cases where this was much less.

Is prison the best solution?

There are problems with prison. The man may simply gain access to a wider social circle in which he can find legitimacy for his actions. Sex offender treatment programmes have yet to be fully researched and are generally more geared towards child abusers than abusers of adult women. While prison remains the only way to secure women's protection we will continue to push for more appropriate sentencing. Of course for many women and children the abuse happens in secret, in the home and the man pays no penalty.

Should there be different offences of rape?

No. This was agreed at the Sex Offences Review and there will be no recommendation for separate offences. Rape is rape regardless of the relationship or the context.

What are the common defences to rape?

There are 3 defences to rape:

• Nothing happened
• It wasn't me
• She consented

Because of DNA fingerprinting, we are getting much fewer of the first two defences and much more of defence three.

Because of the Morgan ruling in the mid 1970s, to convict a man of rape first of all, the prosecution had to convince the jury beyond reasonable doubt that the woman was not consenting. Whether he was guilty or not depended on whether or not he thought she was consenting - what was going on in his head - not what was happening to her body. This was the "Morgan" rule which says that a man is not guilty of rape if he believed she was consenting NO MATTER HOW UNREASONABLE THAT BELIEF.

The Sexual Offences Act 2003 introduced the concept of 'reasonable steps'. Deciding whether a belief is reasonable is done by considering any steps he has taken to ascertain whether she consented (subsection (2) of sections 1-4).

This is a major change in the law and the Act abolishes the Morgan defence of a genuine though unreasonably mistaken belief as to consent.