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Sexual Offences Articles

What is the difference between Rape and Statutory Rape?

Stuart Miller Solicitors | Criminal Defence Solicitors

Rape and statutory rape are two extremely serious offences, punishable by long sentences in England and Wales (as elsewhere in the world). While the two offences are similar in many respects, there are elements of statutory rape in particular that differ from the general offence of rape. If you have been charged with either offence, you are probably very concerned about what will happen next and understandably want to know more about the offences, potential sentences if found guilty, any defences available, as well as other matters relating to these crimes. Continue reading to find out more.

What is the difference between rape and statutory rape?

Section 1 of the Sexual Offences Act 2003 defines rape as:

  • “Intentional penetration with the penis, by the defendant of the victim’s vagina, anus or mouth either without the consent of the victim, or without the reasonable belief that the victim has consented.”

Statutory rape is one particular type of rape. It is very similar to the broad definition of rape outlined above, but it concerns victims of a certain age who are determined by law not to be able to consent to sexual relations. In England and Wales, there are three types of statutory rape:

  • rape of a child under the age of 13
  • sexual activity with a child over the age of 13 but under the age of 16
  • offences relating to a child under the age of 18

Because the law does not consider individuals of these ages to be able to consent, legally-speaking, it does not actually matter whether in fact the alleged victim agreed to the sexual activities.

In both cases, it also does not matter whether the alleged perpetrator and victim knew each other, or whether they are complete strangers. Likewise, it does not matter if it was the first alleged occurrence of such activity, or one of many.

Can a 16-year-old and 19-year-old date?

One of the most confusing aspects of rape and statutory rape laws is whether teenagers can consensually engage in sexual relations. On the one hand, it seems somehow unfair to punish teenagers for ‘doing what teenagers do’ if both of them consent and are aware of safety precautions, but legal protections exist for a very good reason.

While there is nothing to stop, say, a 16-year-old and 19-year-old from dating per se, there are prohibitions on the types of sexual activities they can engage in as part of that dating. The age of consent in England and Wales is 16, and it is perfectly OK for a 16-year-old and a 19-year-old to have sex, as long as both parties consent and the 19 year old is not an individual in a position of power, authority, or responsibility over the 16 year old (such as a sports coach, a teacher, or a care professional). If the older party is in such a position, they are likely to face a statutory rape charge for ‘offences relating to a child under the age of 18’.

What happens in a rape or statutory rape investigation?

Crucial to any case against an alleged rapist is evidence. Without it, there simply is no case to answer and the police risk having a dangerous person out on the streets. As such, investigations are usually extensive and may involve:

  • ongoing surveillance of your home or workplace
  • searching your possessions in the home or workplace
  • forensically searching your car, boat, or other vehicles
  • taking medical swabs, such as saliva, urine, or semen samples
  • collecting statements from the parties involved
  • retrieving CCTV footage from relevant businesses or public buildings in the vicinity of the alleged crime
  • speaking with potential witnesses who may have been present before, during, or after the alleged crime
  • confiscating digital devices such as mobile phones, tablets, or computers
  • obtaining access to your emails or social media accounts

What evidence is used in rape and statutory rape cases?

Central to any rape case (and indeed any pursuant rape trial) is the issue of consent. Prosecutors will be trying to prove that the alleged victim did not consent, while the defence will probably be trying to show either that the alleged victim did consent, or that for whatever reason the defendant knew that the victim did not consent but should not be found as culpable because of certain circumstances.

Consent, or lack thereof, may be communicated in a number of ways, and it is likely that various types of evidence – some of which may be very personal or embarrassing for the parties – will be used in court. This could include:

  • Testimony from the alleged perpetrator and the victim, or people who witnessed their interactions
  • CCTV evidence showing the parties concerned and their behaviours (such as the alleged victim pushing the perpetrator away and gesturing ‘no’ with their hands)
  • Phone data, such as text messages, images, videos, and audio clips

The prosecution also needs to prove that the alleged penetration or touching actually took place. To achieve this, they may draw upon a range of evidentiary sources (like CCTV), or they may need to use medical evidence, such a vagina swabs or semen samples, or testimony from doctors that examined the alleged victim.

Because the events that can lead to a rape or statutory rape allegation are so diverse, many different types of evidence could be brought to the table.

For statutory rape in particular, evidence relating to the age of the victim (their actual age, as well as any representations of their age made to the alleged perpetrator, e.g. a fake ID card) will also be crucial.

How long is jail time for rape?

Typically, offenders receive a sentence of between 4 to 19 years’ imprisonment for rape, but that could be elevated to a life sentence where the acts of the perpetrator were particularly heinous.

Factors that may increase a rape sentence include:

  • repeat offending
  • violent offending
  • the involvement of humiliation to threaten or embarrass the victim
  • the victim being left with injuries or diseases after the rape
  • significant planning of the offence
  • the coercion of others to be involved with the offence

How long is jail time for statutory rape?

In England and Wales, statutory rape as rape of a child under the age of 13 is an indictable offence (meaning it will likely start at the Magistrates’ Court and then be sent to the Crown Court for trial by jury) that is punishable by up to 14 years’ imprisonment. This is an extremely serious offence, and it is not unusual for the sentence given to reach that maximum time.

For the statutory rape offence of sexual activity with a child under 16, the maximum sentence is 14 years’ imprisonment if there was penetration, and 6 months’ imprisonment and a fine or both if there was no such penetration.

In cases of offences against a child under 18 (cases that involve breach of a position of trust), the sentence can be up to 5 years’ imprisonment.

Are there any defences to rape and statutory rape?

The subject of defences to rape and statutory rape is a highly complex matter and you should seek the advice of an experienced sexual offences defence lawyer prior to raising any such defences in your legal case.

Defences differ between the two crimes, with defences for rape being wide ranging and those for statutory rape typically relating more narrowly to the question of the age of the alleged victim.

Defences to rape

For rape, it is a defence to show that, in fact, the alleged victim did consent to the penetration (which may have to be proved through numerous pieces of evidence, such as testimony, recordings, text messages, CCTV or other video recordings). It is also a defence to prove that while there was unwanted sexual activity, it did not actually involve penetration (in which case, you would be charged with a lesser sexual offence).

Defences to statutory rape

Defences to statutory rape relate either to consent, as above with the broader offence of rape, or to the age of the victim. While arguing that the victim was actually ‘of age’ is highly unlikely to occur (as, of course, the case would not be charged as statutory rape if the alleged victim were actual of consenting age), it could help to reduce a sentence if the defendant is able to show that the victim somehow misled them about their age, and it was reasonable to think that the victim were of that claimed age. For example, if a 15-year-old shows a fake ID that claims they are actually 17, it might be very hard for someone to determine that actually the 15 year old is too young to consent.

Where to get further help?

If you are looking for representation in a rape or statutory rape case, look no further than the experts at Stuart Miller Solicitors. We have decades worth of experience helping defendants with these particularly difficult and stressful cases, and we may even be able to help you get the case dropped before it goes to trial to save you the embarrassment and upset of public shame. To find out more about how we can help, get in touch today.

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