14. Rape

What the lecture says

The old definition: Unlawful carnal knowledge of a woman without her free and conscious consent. Consent is not free if it is produced by force, by fear of death or injury to her or to another, or by fraud as to the nature of the act. The singing-master case, R v Williams [1923] 1 KB 340, is the fraud example the lecture means: the girl was persuaded that intercourse was a breathing exercise. Intercourse with a woman who is asleep is the lecture's other example. So is intercourse with a woman the man has made drunk so that she cannot consent. That Camplin is the old rape case. It is not DPP v Camplin, the provocation case about the fifteen-year-old and the chapatti pan.

Penetration: The slightest penetration is enough. Emission of seed is not required. The lecture cites section 3 of the Offences against the Person Act 1861 for that rule. The section that says so is section 63, not section 3. Section 63 says that where carnal knowledge must be proved it is not necessary to prove emission, and the offence is complete on proof of penetration only.

What not to copy

A husband and his wife: The lecture says a husband cannot rape his wife, because marriage is a standing consent, and that force is only an assault under section 47. That was the old common-law immunity. R v R [1992] 1 AC 599 abolished it in England. A husband can be guilty of raping his wife. The lecture's further points, a separation order or a decree, were exceptions to an immunity that has gone. Do not teach the immunity.

A boy under fourteen: The lecture says he is irrebuttably presumed incapable of rape, so he cannot be a principal in the first degree, though he can aid and abet, and the evidence of his actual capacity is inadmissible. That is the old common law. England removed it by the Sexual Offences Act 1993. Do not write it as the rule under the Sexual Offences Act 2012. The Sierra Leone chapter on non-fatal and sexual offences is the place for the current offence.

"Animal instinct": The lecture cites R v Fletcher for the idea that a girl with a severe mental disability can consent by mere instinct, so that rape is not made out without more. Do not adopt that sentence. A person who does not understand the nature of the act does not consent. The 2012 Act is also explicit that a person under 18 cannot consent.

The statute to use

Sexual Offences Act 2012: It governs rape and sexual penetration of a child. A person under 18 cannot consent. The Sexual Offences (Amendment) Act 2019 raised the maximum for rape, and for sexual penetration of a child, to life imprisonment. The lecture's "life imprisonment" for the old felony happens to match that maximum. The definition does not. Morgan, on an honest belief in consent, is in the chapter on mistake. It is not a licence to ignore the 2012 Act.