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Section 1 Rape

Under the Sexual Offences Act 2003 rape is redefined to include penetration of the mouth as well as penetration of the vagina or anus by the penis.

The elements of rape under Section 1 the of the Sexual Offences Act 2003 are:

  • A intentionally penetrates the vagina, anus or mouth of another person (B) with his penis
  • B does not consent to the penetration, and
  • A does not reasonably believe that B consents
  • Penetration of the mouth is included.

Rape is still a crime of basic intent, and drunkenness is no defence.

There are three new measures on the issue of consent:

  • There is now a statutory definition on the issue of consent: a person consents if he or she agrees by choice to the sexual activity and has the freedom and capacity to make that choice.
  • All the circumstances at the time of the offence will be looked at in determining whether the defendant is reasonable in believing the complainant consented.
  • People will be considered most unlikely to have agreed to sexual activity if they were subject to threats or fear of serious harm, unconscious, drugged, abducted, or unable to communicate because of a physical disability.

These measures are designed to redress the balance in favour of victims without prejudicing the defendant's right to a fair trial, to help juries reach just and fair decisions on what is a difficult area or prosecution.

Section 5: Rape of a child under 13

Section 5 makes it an offence for a person intentionally to penetrate with his penis the vagina, anus or mouth of a child under the age of 13. Whether or not the child consented to this act is irrelevant. Section 5 of the Sexual Offences Act 2003 is a Strict liability Offence

Section 74 Sexual Offences Act 2003: "Consent"

Section 74 defines "consent" as "For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice." This definition is relevant to many sections in the Part including the offence of rape (section 1). The section refers to a person's capacity to make a choice. A person might not have sufficient capacity because of his age or because of a mental disorder.

Judicial Studies Board: Sexual Offences - Consent, "Domestic Circumstances”

Sexual offences.

Criminal Law