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 It repealed almost all of the existing statute law in relation to sexual offences.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.
Under section 1(1) SOA 2003 a defendant, A, is guilty of rape if:
_ A intentionally penetrates the vagina, anus or mouth of B (the complainant) with his penis;
_ B does not consent to the penetration; and,
_ A does not reasonably believe that B consents.
The new offence of rape in section 1(1) SOA 2003 includes oral and anal penetration with a penis. This is a change from the previous law which was only concerned with vaginal penetration and used other offences to criminalise these forms of sexual violence (such as indecent assault). The person who commits the offence of rape must be a man (as the penetration has to be with a penis). However, both women and men may experience rape. If the penetration is with something other than a penis then the offence is assault by penetration
For the offence of rape to have been committed the defendant must have penetrated you without your consent, or continued to penetrate you after you withdrew your consent, and the defendant must not have reasonably believed that you were consenting.
It is not relevant what relationship, if any, a defendant has or had with you. Nor is it relevant if the act complained of occurred within a relationship. If the defendant intentionally penetrates with his penis the vagina, anus or mouth of the complainant without her consent where he does not reasonably believe in her consent the defendant has committed rape.
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.
common myths about rape
Here are some of the most common myths that surround rape and sexual assault:
Myth Do not go out alone at any time. Women are most likely to be raped outside, in dark alleyways late at night. This is the best way for a woman to protect herself.
Fact The suggestion of avoiding walking alone, especially at night is a common suggestion to avoiding sexual assault. However, only 9% of rapes are committed by 'strangers'. Women are raped in their homes and in their work places where they are less likely to be believed and even less likely to report. This myth can control movements and restricts freedom. This can feel like women are living under a 'curfew' and that it is a woman's responsibility to be either in or out at certain times. More than 80% of rapes are committed by known men.
Myth Women who are sexually assaulted 'ask for it' by the way they dress or act, rape only happens to young women.
Fact Many women are led to believe that if they are not part of a certain category of women then they are 'safe' from being raped. Women and girls of all ages, classes, culture, ability, sexuality, race and faith are raped. Attractiveness has little significance. Reports show that there is a great diversity in the way targeted women act or dress. Rapists choose women based on their vulnerability not their physical appearance.
Sometimes women see themselves as 'unworthy' or 'undesirable' because of their age or physical appearance and therefore 'safe' from rape. Some men joke or make comments about women's appearances or age to indicate whether she is sexually desirable or available, or as part of their defence in court, saying he thought 'he was doing her a favour', using her appearance or age. Women are raped from the age of three to ninety three. Rape is an act of violence not sex.
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Myth Everyone knows when a woman says no, she often means yes. Women secretly want to be raped.
Fact Rape is a terrifying, violent and humiliating experience that no woman wants or asks for. Legally a person has the right to change their mind about having sex at any point of sexual contact. If a sexual partner does not stop at the time a person says no, this is sexual assault. If a person is in a relationship with someone or has had sex with a person before, this does not mean that they cannot be assaulted by that person. Consent must be given every time two people engage in sexual contact. Sex without consent is rape.
Myth The women was drunk / took drugs / had a bad reputation / was hitch hiking / wore tight clothes / seduced him / probably got what she was asking for.
Fact If a person is unconscious or their judgement is impaired by alcohol or drugs, legally they are unable to give consent. Having non-consensual sex with a person who is intoxicated is sexual assault.
Rapists use a variety of excuses to attempt to discredit the women they rape and to justify their crime. No woman asks or deserves to be rape or sexually assaulted. Often a rape case is defined more by the woman's character than by what has happened to her. Newspapers and mass media often refer to women in the roles that they have within society - 'young mother', 'grandmother', 'doctor's wife' etc. If the woman's role or social position is not seen as socially acceptable, she is often held responsible not the rapist. For example, the original 'Jack the Ripper' and Sutcliffe in the late 70's and 80's were glorified by the press. (Jack the ripper has his books, museum, cocktails, computer games and even tourist walks in London named after him where you can visit the places women were murdered!)
The rules imposed on women's behaviour allow rapists to shift the responsibility for rape onto women wherever possible, so that most of the perpetrators who rape are seen as victims of malicious allegations, carelessness or stupidity. There is no other crime in which so much effort is expended to make the victim appear responsible - imagine the character or financial background of a robbery victim being questioned in court.
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Myth Women eventually relax and enjoy it. They secretly want to be raped
Fact There is a widely held belief that women enjoy rape or that it is 'just sex at the wrong time, in the wrong place'. Rape is a crime of sexual violence and humiliation which can involve being beaten, physical restraint, the use of knifes and sticks, urination and defecating. Studies have consistently shown that most rapes involve physical force to some degree. Often when a woman is raped she is afraid that she will be killed - rapists often use the threat of killing a woman or her children to ensure her 'submission' and her silence after the attack. Women do not enjoy sexual violence. Victims of murder, robbery and other crimes are never portrayed as enjoying the experience.
Myth The woman did not get hurt or fight back. It could not have been rape.
Fact Men who rape or sexually assault women and girls will often use weapons or threats of violence to intimidate women. The fact that there is no visible evidence of violence does not mean that a woman has not been raped.
Another myth that goes hand in hand with this is that ' rape is a fate worse than death' and this links with the belief that women should fight and resist throughout. Faced with the reality of rape, women make second by second decisions, all of which are directed at minimising the harm done to them. At the point where initial resistance, struggling, reasoning etc have failed, the fear of further violence often limits women's resistance. The only form of control that seems available to women at this point is limiting the harm done to them.
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Myth Men of certain races and backgrounds are more likely to commit sexual violence.
Fact There is no typical rapist. Studies show that men who commit sexual violence come from every economic, ethnic, racial, age and social group. 85% of rapists are men known to their victims.
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Myth Men who rape or sexually assault are mentally ill or monsters.
Fact Studies have indicated that as few as 5% of men are psychotic at the time of their crimes. Few convicted rapists are referred for psychiatric treatment.
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Myth The man was drunk / on drugs / depressed / under stress / wasn't himself.
Fact Men use a variety of excuses to justify the act of rape. There is never an excuse.
Myth Once a man is sexually aroused he cannot help himself. He has to have sex.
Fact Studies show that most rapes are premeditated i.e. they are either wholly or partially planned in advance. All rapes committed by more than one assailant are always planned. Men can quite easily control their urges to have sex - they do not need to rape a woman to satisfy them. Rape is an act of violence - not sexual gratification. Men who rape or sexually assault does so to dominate, violate and control.
Myth Men who rape are sexually frustrated / do not have the opportunity to have sex with a willing partner.
Fact Men who rape are as likely as any other man to be cohabiting or having a significant relationship with a woman. More than one in five women are raped by their partners or their husbands. Women who work as prostitutes or in the sex industry are usually dismissed as rape victims because of bias by the police, criminal justice system, juries and society in general.
Myth Women make up stories about being raped. .
Fact Reporting to the police can be a difficult decision. There are many myths that underlie the belief that women make false and malicious allegations of rape against innocent men. Studies show however, that the allegations of rape that are false are exactly the same as that of any other crime i.e. 6 - 8%
Myth Women cannot rape other women
Fact Only a man can commit the offence of Rape [Sec 1 (1) SOA 2003] as the penetration has to be with a penis. However, both women and men may experience rape. If the penetration is with something other than a penis, then the offence is assault by penetration.
The majority of sexual assaults are committed by men against women, but anyone can be sexually assaulted and emotional, physical and sexual abuse does happen in same sex relationships. Often when women are assaulted by other women they fear they will not be believed. It is important to realise that women who are assaulted by other women are able to access support and are believed
information taken from http://www.rapecrisis.org.uk/index.php
another useful website is http://rasasc.bizview.co.uk/
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