Rape Notes (Module 3, Unit 1)

Rape Notes (Module 3, Unit 1)

Dajanae Dawkins

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Rape🚫

-it is a common law offence originally but its now due to statute under the Sexual Offences Act (In Jamaica)

-It is a gender specific offence, as under the laws in Jamaica only a man can rape a female. Thus, all the other sexual deviances (they/them, trans, etc) that non consensually has sexual intercourse with another goes under something else

-Thus, a woman cannot rape a man legally (at least in Jamaica) (which is why its gender specific)

*age of consent for sex: 16

*age of adulthood: 18

*age of consent for marriage (with parent’s consent): 16

-Section 3 of the Sexual Offences Act is what Rape comes under, but it was all originally from Offences Against the Persons Act before until all sexual offences were put under the one act

🚫Sexual Offences Act (Jamaica)

A man commits the offence of rape if he has sexual intercourse with a woman-

1.without the woman’s consent

2.knowing the woman does not consent to the sexual intercourse or recklessly not caring whether the woman consents or not

*NOW it is not gender specific and females can be guilty of rape (outside of Jamaica) (it is still gender specific in JAMAICA)

*if the two litigants are young, normally not prosecuted, but if there is a big gap in build or age, there will be prosecution

If the accused can prove:

*he is under 23 after the trial

*he has never been charged for such an offence (run finger prints in data base)

*he reasonably believed that she was 16 or older (due to build and not only what she says)

He won’t be charged with rape!

🚫Marital Rape

Outlined in Section 5 of Sexual Offences Act

The Sexual Offences Act of Jamaica provides that a man can rape his wife. Section 5 sets out the circumstances in which this can take place.

Sub-section 1 of the section provides that: A husband commits the offence of rape against his wife if he has sexual intercourse with his wife in any of the circumstances specified in subsection 3: the knowledge of the absence of consent OR recklessly not caring whether or not the female is consenting

This was not a thing in common law until it was taken from Offences Against the Person Act and made through the statue of the Sexual Offences Act official

For Martial Rape to be rape, any one of these have to exist:

1.The parties have been separated and have been living separately for at least a year;

2.There is a written separation agreement between them;

3.Divorce proceedings have commenced in court;

4.The husband knows himself to be suffering from a sexually transmitted infection. (R v Mohammed Dica)

5.There is an order or injunction against the husband for the purpose of the personal protection of the wife (eg: a non-cohabitation order, non-molestation or occupation order) (not common)

Case: R v Clarence

C had sexual intercourse with his wife while he was suffering from gonorrhoea, as a result of which she contracted the disease. It was found that had she been aware, she would not have consented. C's appeal against conviction for assault occasioning and for unlawfully and maliciously inflicting grievous bodily harm was allowed.

🚫Elements of Rape

1.Actus Reus

-vaginal penetration no matter how slight without consent

Cases:

R v Williams

A young child didn’t have a good voice in a choir compared to everyone else and W said he’d sleep with her to cure it. He was convicted due to fraud/misrep but the main reason was lack of consent

Kaitamaki v The Queen

After agreeing to have sex during penetration K realised she wasn’t consenting but he decided to continue anyways, she cried rape. He was found guilty. Even though it wasn’t complete, in the case of rape ‘complete’ meant it is in as sex doesn’t ‘end’ until withdrawal

R v Olugboja

consent was obtained out of fear

2.Mens Rea

the knowledge of the absence of consent OR recklessly not caring whether or not the female is consenting

If consent is obtained by:
*force

*fear

*fraud (eg: a twin slept with his twin’s wife, even though she consented she didn’t know as it is fraud)

IT IS NOT CONSENT

A controversial judicial decision on the mens rea for rape is in DPP v Morgan

Cases:

DPP v Morgan

Mr. Morgan invited three of his friends to have intercourse with his wife, telling them that her signs of resistance were not to be interpreted as lack of consent, as she enjoyed it better that way. In fact the wife was not consenting, but the three friend thought that she was. the three friends were convicted of rape.

They appealed on the grounds that they did not have mens rea, as their belief that she was consenting was reasonable.

The appeal was dismissed (by majority). Although the Law Lords reasoned that as long as the belief was genuine and honest pertaining to consent, it did not have to be a reasonable belief for a defence to rape. the conviction was upheld, as no jury would have acquitted them on that evidence. The complainant had clearly communicated her lack of consent.

The decision was good in legal academics but refused by the press

R v Elbekkay

This man had sexual intercourse with a woman. The woman believed that he was her boyfriend. He appealed his conviction for rape.

His appeal was dismissed as she wasn’t aware he was not her boyfriend thus, fraud

Rape involves the absence of consent.

The absence of consent is crucial whether or not the woman believes that the man is her boyfriend or another.

R v Thomas

This case defined recklessness:

"A man is reckless if either he was indifferent and gave no thought to the possibility that the woman might not be consenting, in circumstances where, if any thought had been given to the matter, it would have obvious that there was a risk she was not, or, he was aware of the possibility that she might not be consenting, but nevertheless persisted, regardless of whether she consented or not" (The man is reckless if he’s either indifferent or gave no thought to the possibility she was not consenting  (if he used his head he’d be aware she was not consenting)

EXTRA INFORMATION

Doli incapax

Under S. 6 of the Child Care and Protection Act (JA), an under 12 y.o. male cannot commit rape:

"It shall be conclusively presumed that no child under the age of twelve years old can be guilty of an offence."

This is an irrebuttable presumption! in statute BUT rebuttable in common law

Common law presumption of penetration

any male child under 14 year old cannot be convicted for penetration of the vagina

THIS WAS ABOLISHED UNDER THE SEXUAL OFFENCES ACT (JA)

The common perception that a boy under the age of 14 cannot commit rape is abolished.

S. 24 Sexual Offences Act is pellucid:

"It is hereby declared that subject to section 63 of the Child Care and Protection Act, the common law presumption that a boy under the age of fourteen years is incapable of committing rape or any other offence involving vaginal or anal intercourse is abolished."