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The Relevance of Victim's Volunary to a Charge of Rape - Essay Example

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This paper will look closely at the issue on voluntary intoxication and capacity to give consent in rape cases vis a vis the Sexual Offences Act 2003. It looks at the various angles of the issue and reflect on the ways legislation can be improved in a manner that is sensitive to the victim…
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The Relevance of Victims Volunary to a Charge of Rape
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Download file to see previous pages The Act replaced the Sexual Offences Act 1956, and all its amendments. The said Act saw the evolution of the definition of rape – the actus reus – from its original definition in the Sexual Offences Act 1956 which was “unlawful sexual intercourse with a woman” to “penile penetration of the vagina, anus or mouth of another person without their consent.” The inclusion of the anus and mouth as body parts renders it now legally possible for a male to be raped, but the retention of the word “penile” limits the defendant in a charge of rape to only male. The charge of “assault by penetration” is used to cover circumstances wherein objects other than a penis are forcibly inserted into the aforementioned orifices, and exacts the same penalty as rape. The next issue is the “mens rea” or the guilty mind – this means that the person accused of committing the crime knew that he was committing the crime. In the context of rape, it means he knew that he did not secure the victim or the complainant’s consent when he proceeded with having sexual congress with her. In the past, UK law relied upon the “mistaken belief clause” which was in the case Morgan4 in 1976. Here, the accused men were informed by the husband that his wife would struggle and say ‘no’, but they should just continue because she was in truth enjoying it. Whilst they were eventually convicted anyway, the case set a troubling precedent: if there was an honest belief engendered in a man’s mind that a woman consented to sex, even if that belief is unreasonable, the requirement of men rea is unsatisfied and therefore the rape charge will not prosper. Westmarland (2004: 7) provides a succinct summary of the definition of rape in the Sexual Offences Act 2003, to wit: The...
The research looks at the feminist critique of the rape law, as it is framed. Feminists who have called for the reform of rape law have demonstrated that “the law of rape historically has regulated competing male interests in controlling sexual access to females, rather than protecting women’s interest in controlling their own bodies and sexuality”. This is a fascinating proposition, and jibes with the conflict theory of criminal justice, which looks as criminal laws as having an agenda supportive of a dominant class. In the case of rape, the dominant class might be the male gender. This paper proceeds to look into the whole issue surrounding involuntary intoxication, which goes into the heart of the notion of consent. Whilst there are differing opinions as to whether or consent is a state of mind, or it is an action, either way, alcohol ingestion makes consent problematic. If consent is a state of mind, alcohol at a certain level addles and distorts the mind in a state of inebriation. If consent is an action, alcohol has behaviour-altering effects and can impair speech and physical movement in such a manner that consent becomes ambiguous. To use the definition given by Cowan, “to be in a state of intoxication means that one’s mental and physical capacities are substantially altered from one’s ‘sober’ state, through the ingestion of intoxicating substances. To better understand the situation at hand, researchers look at the two important cases of R v. Dougal and R v. Bree. ...Download file to see next pages Read More
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