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Being accused of a sexual offence is a highly stressful experience. As a defendant in a rape case, you probably have many questions about the criminal justice system and how it will treat you. You might be wondering about how to plead and seeking as much information as you can to inform your decision-making. This article explains the legal definition of a rape offence, offers some examples of real-life rape cases and the punishments people received, and goes on to explain the sentencing guidelines for rape, along with some possible defences to rape.
Rape is one of the oldest criminal offences, but the way that it is defined in law and understood has changed significantly over time. The current definition of rape is set out at Section 1 of the Sexual Offences Act 2003.
The law defines rape as:
According to Section 74 of the Sexual Offences Act 2003, consent means agreement by choice by a person who has both the freedom and the mental ability to make the choice.
The person who is consenting must have the capacity to understand the choice they are making. This means that they must understand the nature of act that they are agreeing to.
This could mean that, for example, if an individual agrees to have sexual intercourse with another individual on the condition that they use a condom, if they do not use a condom, the consent given would be invalid and this would constitute rape. It also means that intoxication by alcohol or other substances may cause a person to lose their capacity to consent.
The law states that children under the age of 16 years old cannot give valid consent, therefore any sexual intercourse with a child under the age of 16 would be considered to be rape. If the victim is under the age of thirteen at the time of the incident, a different – and very much more serious – offence applies: rape of a child under 13.
|Case Details||Judgment Date||Sentence||Link to Transcript|
|Rape with manifest perverted or psychopathic tendencies or a gross personality disorder||21/02/1986||Life imprisonment||https://crimeline.co.uk/wp-content/uploads/2017/03/Billam-and-others.pdf|
|Rape of a friend who was sleeping in the same bed as the accused||07/10/2015||Life imprisonment||https://crimeline.co.uk/wp-content/uploads/2017/03/Bell.pdf|
Despite the public perception of accused rapists, the experienced team at Stuart Miller Solicitors knows that everyone, no matter their appearance, background, or any other factors, deserves equal treatment before the law and adequate representation from legal counsel. This is why we are proud to have supported defendants on both the guilty and not guilty sides of a rape defence, and why we continue to support every and all clients with their individual cases.
Some our notable successful defences in this category include:
Typical sentences for rape are between 4 and 19 years’ custody (i.e. imprisonment). The maximum sentence that you could receive if found guilty of rape is a life sentence. The seriousness of the sentence that is ultimately given will be assessed by the court on the basis of the particular facts of the defendant’s case. The court will weigh up many factors in making its sentencing decision, including the harm caused to the victim, the culpability (blameworthiness) of the defendant, and any other aggravating factors (like this being a second or subsequent offence).
The court will find that the victim suffered more harm where they were subjected to violence, psychological harm, degradation, humiliation, or abduction. A defendant’s conduct would also be considered more harmful if they forced entry into the victim’s home, caused pregnancy or gave the victim an STI/STD as a consequence of the offence.
Factors that heighten the defendant’s culpability include abuse of a position of trust, the use of drugs or alcohol to commit the offence, and if there was a previous history of violence against the victim. The court will also find the defendant more culpable if they colluded with others to commit the offence (in which case, conspiracy to rape might also be at issue).
The court will then categorise the offence according to these factors. This assessment will form the starting point for calculating a sentence. More information on the sentencing guidelines for rape can be found here.
As part of the sentencing process, the court is obliged to consider whether it would be just to impose a life sentence upon the defendant. This involves an assessment of the dangerousness of the defendant. The guidelines for this are set out at Part 10, Chapter 6 of the Sentencing Code. A defendant in a rape case is more likely to receive a life sentence where the rape offence is the second, or subsequent, serious offence that they have committed, or where they are charged with multiple offences. However, in some cases, a single offence will be enough to justify the imposition of a life sentence.
If you are given a life sentence, you are likely to be given a minimum custodial sentence of at least 15 years. Once you are released, you will remain on licence for the remainder of your life. To stay out of prison, you will need to adhere to your licence conditions.
There are several defences specific to rape that you may be able to rely upon.
The victim consented
This defence is relatively straightforward in that you argue that the victim explicitly or tacitly consented to sexual intercourse prior to the intercourse taking place. This is highly evidence dependent and may be very distressing for both the defendant and the alleged victim.
You reasonably believed that the victim consented
To succeed with this defence, you need to prove that you had a reasonable belief that the victim consented. Again, this is highly evidence dependent. The jury will be asked to consider:
Penetration with the penis did not take place
In cases where the prosecution cannot prove that penetration by the penis took place, the defendant may be convicted of a lesser offence, such as assault by penetration.
These are general defences which may apply to rape, depending on the facts of the case.
Insanity: If the court finds that you were suffering from a recognised mental illness causing you to lack the mental capacity to commit the offence, you may be acquitted on the grounds of insanity. This could, however, lead to you being remanded within a secure psychiatric environment under the rules of the Mental Health Act of 1983.
Duress: This is where you argue that you were forced or pressurised by a person to commit an offence. The court will consider whether you feared death or serious injury if you did not comply with the person’s instructions, and whether a reasonable person in your situation would have responded in the same way. This offence is often raised in relation to gang ‘initiation ceremonies’, where new members are forced to commit heinous acts to prove their ‘ability’ to be part of a criminal gang.
Automatism: If you were unaware of your actions at the time of committing the offence, in some circumstances, you may be able to rely upon the defence of automatism. This defence only applies in rare circumstances. Generally, if you have voluntarily consumed alcohol or illicit drugs at the time of the offence, you would not be able to rely on this defence.
Mistake: Mistake applies where you misunderstood or mistook certain factual circumstances and would not have committed the offence otherwise. This defence relates to a mistaken understanding of facts: it does not provide an excuse for ignorance of the law.
If you have been accused of rape, you need to act quickly and find an experienced criminal defence solicitor today. A good firm of solicitors will support you throughout the criminal justice process, from assisting you in making a bail application, to keeping your chosen family members updated on your case, to preparing your defence and your plea in mitigation. Contact Stuart Miller Solicitors today for a friendly no-obligation consultation.
(This page was last updated on November 22, 2023.)