A guide to the law on Rape
Thursday, June 30, 2016

A guide to the law on Rape

Rape is one of the most serious offences that can be prosecuted in the criminal courts. The subject of Rape cases is, for obvious reasons, a very emotive topic in the media and in public perception and this offence is being increasingly prosecuted in the modern climate. A combination of perceived ‘low conviction rates’ coupled with high profile cases of historic and high profile rape and other sexual offences mean that the CPS are increasingly charging and prosecuting cases which may not have been charged in the past.

This article will examine the elements of the offence of Rape, possible rape defences and the current state of the law; it cannot hope to be definitive but should serve as a good layman’s guide to the law. If you, or anyone you know, is accused of Rape you will require a specialist rape lawyer who will be able to provide expert and effective legal representation.

The basics

Rape is an offence under section one of the Sexual Offences Act 2003, and the offence involves a 3 part test. A person commits Rape if—

-    the person (A) intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, and

-    B does not consent to the penetration, and

-    A does not reasonably believe that B consents.

The law states that 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.


The maximum sentence for Rape is life imprisonment under s1(4) of the Act.

The ‘elements’ of the offence-

As with all criminal charges, the above definition of the offence of Rape contains a number of ‘elements’ all of which must be proven by the prosecution in order for a conviction to occur. I will examine these below.


Penetration carries its ordinary English meaning and is a continuing act so consensual sex will become rape if the woman (or man) withdraws consent during the intercourse, and the other person knowing this continues the intercourse.

This also applies when there is non consensual intercourse where one party reasonably believes that the other consents: this will become rape if the party continues the intercourse after ceasing to believe on reasonable grounds that the other party was consenting.
The prosecution does not need to prove the degree of penetration.  In vaginal rape any degree of penetration by the penis within the alleged complainant will be enough to prove the case.


An element of Rape to be proved by the prosecution is an intentional touching of the alleged victim by the defendant, this means that the touching must be on purpose, and not by accident or even reckless,
However, when gauging intention, a defendant may not rely on self induced intoxication either by drink or drugs to say that he or she was so intoxicated that they could not have formed an intent to touch.


This is a very complicated area of law and I can only outline the basic issues that are raised in respect of consent. The definition of consent in the law of rape is as follows: if a person agrees by choice, and has the freedom and capacity to make that choice then they are said to be consenting to a course of action. This includes sexual intercourse

The fact that a person when having sexual intercourse had not informed their partner that they have a STD (for example AIDS)  is not relevant to the issue of whether their partner had consented to the intercourse. Other offences under the Offences Against the Persons Act may follow in those circumstances, but not Rape.

In the circumstances where a person consents to penetration on the basis that the man will not ejaculate within his partner, if, before penetration begins, the man has made up his mind that he will ejaculate before withdrawal, or even, decides, after intercourse has started, that he will not withdraw before ejaculation, then the original consent will have been taken in law to have been withdrawn or negated and the offence of Rape can be proved.

The same has been held in recent important cases based on deception as to the defendant’s gender. If the victim chooses to have sexual encounters with someone they believe to be male, their freedom to choose whether or not to have intercourse with a female was removed by the deception so again rape can be proved.

The leading authorities on the effect on the ability of a victim to consent when they have consumed a lot of intoxicants such as drink or drugs state that consent cannot be present if the effect of the alcohol made the alleged victim temporarily lose the ability to choose whether to engage in sexual intercourse. The victim does not need to have reached unconsciousness but the question of degree will depend upon the specific facts of the case. Certainly there is still consent when alcohol makes persons less inhibited to the extent that they may regret what they did under the influence of the intoxicant. A lack of memory on behalf of the alleged victim is damaging to the prosecution case but not fatal, it will again depend upon the specific facts of the case.

There are also issues in respect of the question of pressure negating consent and the ability of groomed, immature or disabled individuals to consent. Again these are very complex areas and expert legal advice should be sought to explain what the law is in respect of the facts of a particular case.

Rape defences

Defences to rape under Section 1 of the Sexual Offences Act can include the following:

•    That the sexual act did not occur at all.
•    That the alleged perpetrator was not responsible (mistaken identity).
•    That sexual activity did take place but that penetration did not take place.
•    That accidental penetration took place- that the defendant lacked intent.
•    That the alleged victim consented to the penetrative intercourse.
•    That the alleged victim did not consent but that the defendant believed that the alleged victim did consent and that belief was reasonably held.
•    That the alleged victim did initially consent and claims that the consent is withdrawn- that the defendant believed that the consent continued and that belief was reasonably held.

Previous sexual history

The introduction of Section 41 of the Youth Justice and Criminal Evidence Act 1999 can restrict evidence or questions about the alleged victim’s previous sexual history. This has to be considered very carefully by defence teams when this is or could be an issue in a case.

The Court may allow questioning on issues of previous sexual history if the evidence or questions go to contradict prosecution evidence or if the evidence or questions relate to an issue of relevance at trial (the question of relevance is to be determined by the judge).  These examples can only be used as admissible evidence in cases where the question of consent is not the issue in the case.
If consent is the issue in the case, then evidence may be admitted if it took place around the time of the offence, is very similar to the alleged victim’s behavior at the time of the alleged offence and cannot be coincidental.
The court has a residual discretion to not allow questioning on sexual history if it is of the opinion that the purpose of admitting the evidence is simply to slur the alleged victim, or if justice could still be done despite the evidence not being admitted.

The court has given four examples of issues which might fall to be relevant under an application to admit previous sexual history:

i) honest belief in consent
ii) the complainant was biased against the accused or had a motive to fabricate the evidence
iii) there was an alternative explanation for the physical conditions on which the prosecution relied to establish that sexual intercourse took place; and
iv) that the detail of their account from some other sexual activity which provides an explanation for their knowledge of that activity.

Again this is a complex area of the law which can be very fact specific and advice should be sought from an expert as how to the law applies to a specific set of facts.


Whole textbooks have been written about serious sexual offences and the above is intended to be a non comprehensive layman’s guide to the basics. If you or a family member or friend find yourself accused of a serious sexual offence, it is important that you seek expert legal representation at the earliest stage possible. The unique challenges that such cases present means that effective and tactical representation can be vital in securing the interests of those accused. Quentin Hunt is a Barrister with considerable experience in this area with a formidable reputation and track record.

He accepts instructions directly from members of the public which can provide a considerable cost saving over instructing a solicitor in the case.

Should you wish to have an enquiry about representation Quentin can be contacted for a free, no obligation conversation.