When applied to Joey's case the actus reus is present as he indeed had sexual intercourse with Phoebe. This leads me to the element of mens rea. The fact that Phoebe shoves Joey away and protests seemingly covers both s. 3 (a) and (b), of course this is will be a question for the jury to answer. However the facts we are given state that Phoebe not only physically but vocally protested.
The only defence available to Joey comes in the form of Clause 781 subsections (a) the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether the complainant consented, and (b) the defendant is to be taken not to have believed that the complainant consented unless the defendant proves that he did believe it. Of course, the above has not been placed on a full statutory footing as of yet, the law as it stands states under the Criminal Justice and Public Order Act 1994; (1) It is an offence for a man to rape a woman or another man.
A man commits rape if – (a) he has sexual intercourse with a person (whether virginal or anal) who at the time of the intercourse does not consent to it; and (b) at the time he knows that the person does not consent to the intercourse or is reckless as to whether the person consents. It has also been held that the offence continues throughout penetration, so that if the victim consents initially but revokes consent during intercourse, and the man fails to withdraw, he commits rape – Kaitamaki v R10.
This would show that even if Phoebe's push had been regarded as horseplay the fact that she still protested during the act condemns Joey. The defence of a husband not being liable for raping his wife has been closed to Joey since the House of Lords abolished it in R11 and it was placed on a statutory footing by the 1994 Act. Joey could try and use the defence of mistaken belief in consent as seen in DPP v Morgan12 where the man is mistaken, in that he quite simply lacks the fault element required for the offence but then a test of recklessness applies.
The prevailing views are that a man commits rape recklessly if he 'could not care less' whether or not the victim consents as seen in Breckenridge13. An alternative view is that the defendant 'carried on regardless' of whether the victim was consenting, as demonstrated in Gardiner14. The final legal problem that needs dealing with in the case is that which is brought about in the meeting between Joey and Monica at the front door. Here we see Joey pushing Monica out of the way, with her subsequently falling against the door and banging her head.
This amounts to an assault occasioning actual bodily harm as covered by s. 47 OAPA and if proved is punishable by up to five years in prison. The actus reus of the crime must be a technical assault or a battery and in this case, depending on how hard Joey pushed Monica it could count as either. As for how 'bodily' it must be, as I stated earlier be an 'interference with health and comfort' and banging ones head would qualify as this.
The mens rea is that required for common assault or battery, once the intention or recklessness of the action has been proved the mens rea of the initial assault flows to the actual bodily harm. When we talk of recklessness here it is of the Cunningham variety meaning that there is no need to prove intent to cause injury or foresee bodily harm – Roberts15. This is best demonstrated in the case of Savage16 where the accused threw beer at the victim in the pub, the glass was let go of (either deliberately or by accident) and the victim was cut by broken glass.
The battery came from the throwing of the beer and so there was no requirement to show that she foresaw the risk of actual harm. When we apply this to Joey's situation it seems that he has little or no defence against the charge.
Ashworth A. 'Principles of Criminal Law, Third Edition. New York: Oxford University Press, 1999 Smith J. C and Hogan. Criminal Law, Tenth Edition. Bath: Butterworths, 2002 Criminal Law Act 1967 Criminal Justice and Public Order Act 1994 Offences Against the Person Act 1861 Sexual Offences Act 1956