The Sexual Offenses - Essay Example

Order 206663 Topic Does the law give enough guidance on consent in rape Submitted by Submitted to 19 February 2008 Order 206663 Topic: Doesthe law give enough guidance on consent in rape Introduction Government has recently brought a significant change on the law of rape through the introduction of sexual offences act, 2003. "Actually, this is an instrument of providing a solid legal framework to tackle sexual offences in 21st century Britain" (The Home Office, n.d.,p.3). Importantly, it has introduced a range of civil orders that are very much significant in saving people from sexual exploitation by the sex offenders. The Sexual Offences Act 2003 has erected a viable legal framework for dealing with sexual offences. One of the significant aspects of this act is the special attention on providing a detailed discussion over consent concerned with rape. "After a three-year period of consultation with those dealing with crimes and sexual offences, the Sexual Offences Act 2003 came into force on 1 May 2004" (The Office for Criminal Justice Reform, 2006, p.12). The sexual offences act, 2003 has revealed a detailed discussion as regards consent in regard to rape. The Law Lords overturned this common law idea that marriage means a man has a 'continual' consent from his wife for sexual activity at any time (R v. R [1992]). Thomas (2005) describes as "[t]his was later brought into statute in 1994, now in Sexual offences Act 2003" (p.11). The present paper is intended to justify whether the guidance of consent as provided in the said enactment is proper or warrants further explanation and amendment. Overview of the Act The Sexual Offences Act, 2003 has been designed to make the process easier and convenient for prosecuting people who use physical force to others for having sex despite the unwillingness of the other party. The legislation provides that a person would not be charged with the offence if he or she intends to protect a child from sexually transmitted infection, from physical safety of the child or from becoming pregnant. The Sexual Offences Act 2003 has made a greater legal protection for victims by clarifying the law on consent. Section 1 of the Act states, a person commits an offence of rape if he intentionally penetrates to the vagina, anus or mouth of another person despite her reluctance. The phraseology "reasonable belief" as enunciated in section 1 is determined in regard to the particular context of a given circumstance. Section 74 of the Act defines consent as stating that a person is presumed to give consent if he agrees by choice, and has the freedom and capacity to make that choice. Section 75 provides a list of circumstances where it may be considered that the victim or complainant did not consent to the said sexual interaction. From a perusal of section 76, it is clear that if (a) the defendant intentionally deceive the complainant as to the nature or purpose of the relevant act; or (b) the defendant intentionally induce the complainant to consent to the relevant act, it is presumed that the victim did not give his or her consent. As per the provisions of section 79(2) penetration is a continuing act from entry to withdrawal and if the victim consents to penetration but withdraws consent after penetration, the accused must withdraw his penis immediately. Consent in the sexual offences Act Consent must be obtained peacefully and without the use of force or violence. If it is obtained by force, threat or inducement or any other unlawful means, said consent would be declared as void and illegal. The meaning of the term "consent" as given in the Sexual offence act, 2003 is an aiding tool for the juries in deciding whether the victim was able to give or did actually give his or her consent to the said sexual transaction. In this connection, the defendant must show that his belief in consent was reasonable and obtained in due manner and a jury must consider all the circumstances including any step which he has taken to ascertain in determining whether the victim consented to the intercourse. Simply saying 'yes' or 'no' does not suggest the consent or negation; rather it should be sparingly considered that whether the said person has sufficient capacity to understand the probable consequences of the act. So, consent obtained from the persons of immature age or mentally disordered or drunkard or intoxicated is held of no practical utility. Section 1 of the Sexual Offences Act 2003 has described the following three cardinal aspects: 1. the prosecution must prove beyond reasonable doubt of the penetration or sexual activity by the offender; 2. the victim did not consent to the penetration; and 3. the perpetrator did not reasonably believe the victim had consented. But, the conclusive presumption and evidentiary value of the consent as given in section 75 and 76 is of not much importance. They have a very little consequence upon the prosecution of the cases. It is generally presumed that a child under the age of 13 does not possess the sufficient capacity to understand the consequence of any sexual activity. So, from a legal point of view, it is rightly held that a child under the age of 13 is not capable of giving consent to any sexual activity. Thus, the consent given to the sexual activity by a person under 13 is an irrelevant consideration. As the child under 13 is considered immature and insufficient age to consent to any form of sexual activity, penetrative sex with a child under the age of 13 is regarded as rape. If the victim is asleep or unconscious or cannot be communicated due to physical disability, it is regarded that the penetration or sexual activity has been committed without obtaining consent. Again, if the victim is delivered any substance causing intoxicated for the purpose of accomplishing sexual activity, it is logically held that consent has not been given by the victim. Case Law Consent is the inevitable component in regard to sexual transaction. So, any sexual intercourse without obtaining consent is regarded as rape and defined as the sexual offence. So, consent as a defence to an allegation of rape requires voluntary participation, not only after the exercise of the intelligence based on the knowledge of the act, but after having freely exercised the choice between resistance and assent. Thus, it is in no way excusable or taking defence that a woman or victim consented later. There are several examples of such incidences where the rape was committed without obtaining the consent and held liable to the justice. There are some leading cases in this regard putting special emphasis on the consent for the commission of rape. In a case where the accused took away the prosecutrix to offer prayers to a deity, stayed in a 'dharmashala' for the night and had sex with her threatening her that the police were nearby, it was held that the prosecutrix could not be described as an accomplice merely because she did not raise alarm and the accused was liable to be convicted under Indian Penal Code (State of Orissa v. Gangadhar Behuria, [1992]). In another case, where the accused made false promise of marriage to a girl and thus obtained her consent to sexual intercourse and it was found that she was a minor and her consent was no consent in law, the conviction under the Penal Law was upheld (Pala Ram v. State of Rajstan, [1994]). The consent of a woman to sexual intercourse obtained by putting her in fear of death or of hurt is no defence for an accused person but where the fear to which the woman is subjected is neither of death nor of hurt, but of being arrested, when as a matter of fact there is no warrant of arrest against her, the consent though obtained by fraud, is nonetheless consent, for she is willing to allow sexual intercourse for a price which is a fictitious one (Mahamood & Shaukat, 1995, p. 64). In Linekar (1995) case, the victim was a prostitute and consented to the accused to sex for 25. But, the accused did not pay her the amount. The fact of this case suggest that both under the old and new sex legislation, there is no occurrence of deception as there was no fraud, intimidation or physical force or any other unlawful means. Recommendation The increasing trend of sexual activity has made people worried as to the societal sustainability. If it continues, certainly the consequence would be very much desperate. So, for the sake of the survival of the present and upcoming generation, enacting a legislation to check sexual activity has become a sine qua non. On this aspect this instrument concerning sexual offence is an effective and timely approach. The guidance of legislation as provided in the said enactment is not of any value. The guidance provided in this act on the other hand has made the legislation more complex. It is reported that the guidance of consent of this act has no evidentiary value and keep its significance in determining conclusive presumption. They are not proved effective or of any use in dealing with even a single case. So, policy makers should be active to make the legislation more practical. Again, legislation alone cannot serve the merits and efficacies for making any change in the country. There should be a well organized educational program to educate the public as to the value of such legislation. In this regard, awareness building program may be undertaken for accomplishing the ultimate objective of the legislation. More undertaking should be taken by the media and from government efforts to convince the people as to the value of this enactment. Bibliography Mahamood, Shaukat. & Shaukat, Naddeem. (1995). The Penal Code Vol II. Lahore: Legal Research Centre. Pala Ram v. State of Rajstan, [1994] Cr Lj 1677 R v Linekar [1995] R v. R [1992] 1 AC 599 State of Orissa v. Gangadhar Behuria, [1992] Cr Lj 3814 The Home Office (UK). (n.d.). Sexual Offences Act 2003: A Stocktake of the Effectiveness of the Act since its Implementation. February 2006. 1-30. Retrieved 18 February 2008 from http://www.homeoffice.gov.uk The Office for Criminal Justice Reform. (2006). Convicting Rapists and Protecting Victims - Justice for Victims of Rape. A Consultation Paper. 1-48. Retrieved 18 February 2008 from http://www.homeoffice.gov.uk & http://www.cjsonline.gov.uk Thomas, Terry. (2005). Sex Crime: Sex Offending and Society. Willan Publishing. Read More