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This section provides an overview of the sexual offences as they are currently understood.
Rape Rape is defined as penetration of the anus or vagina by the penis, without consent. The victim may be male or female and, since the Criminal justice and public order act (1994) may be the wife of the perpetrator. The Mens Rea of the offence is an intention to have sexual intercourse, in addition to the knowledge that the victim did not consent, or recklessness to the existence of consent.
Some classes of people (e.g., people under 16; people with certain metas of mental handicap) are classed as being incapable of consent, in which case only the intention need by shown. Rape is still provable if the victim submits as a result of threats, but less so when the consent is obtained by fraud. However, consent resulting from fraud as to the nature of the act (e.g., telling the victim that it is necessary for medical treatment), or to the identity of the perpetrator (impersonation of partner), does not prevent a conviction for rape.
Drunkenness may be a defence to the 'intention' part of the Mens Rea, but not to the recklessness. In this offence, 'recklessness' is defined more strictly than in, for example, non-sexual assaults. In rape it is a defence to claim that the accused genuinely believed the victim gave consent, even if such a belief were unreasonable. 'Cunningham' recklessness, on the other hand, is expressed in terms of the state of mind of a 'reasonable' person. This slight shift in emphasis makes it harder to prove a charge of rape than of, for example, common assault, where other circumstances may be similar. This may be appropriate because of the seriousness of the offence, but this interpretation has been widely criticised.
Indecent assault The Mens Rea and Actus Reus of indecent assault are essentially as for common law assault and/or batttery. However, there is the additional element of 'indecent circumstances'. 'Indecent circumstances' are currently identified by the following.
- An offence is indecent if a 'reasonable person' would believe it indecent, whatever the belief of the accused
- An offence is not indecent if a 'reasonable person' would believe it not indecent, whatever the belief of the accused
- If the offence cannot be assigned to either preceding category, then it will be indecent if it can be shown that the accused thought it indecent.
Issues of evidence in sexual offences
Sexual offences are difficult to prove, because the Actus Reus is usually an act that would not be an offence at all if the state of mind of the complainant were otherwise. Normally the defendant will want to adduce evidence that the victim did, in fact, consent to the act. This evidence will frequently take the form of allegations that the victim has had previous sexual relations with the defendant, or with other people, or is in some way of less than impeccable moral standing. For a discussion of this difficult area of law, see complainants previous sexual history.