Rape in English law

Rape is a statutory offence in England and Wales.

Statute
The offence is created by section 1 of the Sexual Offences Act 2003:

1-(1) A person (A) commits an offence if—
 * (a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
 * (b) B does not consent to the penetration, and
 * (c) A does not reasonably believe that B consents.

(2) 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. (3) Sections 75 and 76 apply to an offence under this section. (4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.

"Intentionally", s.1(1)(a)
See Intention (criminal)

Penetration, s.1(1)(a) & (b)
See section 79(2).

Meaning of expressions relating to parts of the body
See sections 79(3) and (9)

Consent, s.1(1)(b) & (c) & (2)
This expression is defined by section 74. The rebuttable and conclusive presumptions created by sections 75 and 76 apply to this offence (s.1(3)). They must be read with section 77.

Mode of trial
Rape is an indictable-only offence.

Sentence
A person guilty of rape is liable on conviction to imprisonment for life or for any shorter term.

Crown Prosecution Service sentencing manual

Relevant Cases

 * R v Billam (1986) 8 Cr.App.R.(S) 48
 * R v Millberry [2002] EWCA Crim 2891, [2003] Crim LR 207, [2003] 2 Cr App R(S) 31, [2003] 2 All ER 939, [2003] 2 Cr App R (S) 31, [2003] 1 WLR 546, [2003] 1 Cr App R 25.
 * R v Corran and others [2005] 2 Cr App R (S) 73, [2005] 2 Cr App R (S)73, [2005] EWCA Crim 192
 * R v Abokar Ahmed Ismail [2005] 2 Cr.App.R.(S) 88
 * A-Gs Reference No. 86 of 2005 (Christopher James S.) 2 Cr.App.R.(S)

Rape of a child under 13
This is a statutory offence created by section 5 of the Sexual Offences Act 2003.

Loss of service
No person is liable in tort under the law of England and Wales-
 * to a parent (or person standing in place of a parent) on the ground only of his having deprived the parent (or other person) of the services of his or her child by raping that child; or
 * on the ground only of having deprived another of the services of his female servant by raping her.

History
Rape was an offence under the common law of England and was classified as a felony.

The common law defined rape as "the carnal knowledge of a woman forcibly and against her will." The common law defined carnal knowledge as the penetration of the female sex organ by the male sex organ (it covered all other acts under the crime of sodomy). The crime of rape was unique in the respect that it focused on the victim's state of mind and actions in addition to that of the defendant. The victim was required to prove a continued state of physical resistance, and consent was conclusively presumed when a man had intercourse with his wife. "One of the most oft-quoted passages in our jurisprudence" on the subject of rape is by Lord Chief Justice Sir Matthew Hale from the 17th century, "rape...is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent." Lord Hale is also the origin of the remark, "In a rape case it is the victim, not the defendant, who is on trial." However, as noted by Sir William Blackstone in his Commentaries on the Laws of England, by 1769 the common law had recognized that even a prostitute could suffer rape if she had not consented to the act.

The death penalty for rape was provided by section 16 of the Offences against the Person Act 1828. The death penalty for rape was abolished by section 3 of the Substitution of Punishments for Death Act 1841 which substituted transportation for life. Transportation was abolished by the Penal Servitude Act 1857, which substituted penal servitude for life. These sections were replaced by section 48 of the Offences against the Person Act 1861. Penal Servitude was abolished by the Criminal Justice Act 1948, which substituted imprisonment for life. These sections were replaced by sections 1(1) and 37 of, and paragraph 1(a) of the Second Schedule to the Sexual Offences Act 1956.

The final paragraph of section 4 of the Criminal Law Amendment Act 1885 provided that it was rape for a man to have carnal knowledge of a married woman by impersonating her husband. This provision was replaced by section 1(2) of the Sexual Offences Act 1956.

Rape ceased to be a felony on 1 January 1968 as a result of the abolition of the distinction between felony and misdemeanour by the Criminal Law Act 1967.

A statutory definition of "rape" was provided by section 1 of the Sexual Offences (Amendment) Act 1976. This essentially codified the decision in DPP v. Morgan [1976] AC 182, [1975] 2 All ER 347, HL. In R v. R [1991] 4 All ER 481, HL it was held that the word "unlawful" in that section did not exclude "marital rape". Section 1 of the Sexual Offences Act 1956 was substituted by the Criminal Justice and Public Order Act 1994, providing a new and broader definition. That section was replaced by section 1 of the Sexual Offences Act 2003, providing a still broader definition.

Capacity

At common law a boy under the age of fourteen years could not commit rape as a principal as he was irrebutably presumed to be incapable of sexual intercourse. This rule was abolished by section 1 of the Sexual Offences Act 1993. A boy under the age of fourteen years could commit rape as an accomplice.

It was never decided whether a boy under fourteen could be convicted of attempting to commit rape as a principle if he attempted to have sexual intercourse or actually succeeded in doing so. The reported dicta did not agree on this point.

A woman could not commit rape as a principle, by the nature of the offence, but she could commit rape as an accomplice.

Attempt

Section 37 and paragraph 1(b) of the Sexual Offences Act 1956 provided that a person guilty of an attempt to commit rape was liable to imprisonment for a term not exceeding seven years. Attempted rape became a statutory offence under section 1(1) of the Criminal Attempts Act 1981. But the maximum penalty was not affected by this. The maximum penalty for attempted rape was increased to imprisonment for life by sections 3(1) and (2) of the Sexual Offences Act 1985.

Compensation

Special provision was made in relation to rape by sections 109(3)(a) and 111(6) of the Criminal Justice Act 1988.