A man commits rape if he has sexual intercourse with a person (whether vaginal or anal) who at the time of the intercourse does not consent to it, and, at that time, he knows that the person does not consent or is reckless as to whether that person consents to it. The defendant, if found guilty, faces a maximum of life imprisonment. Life sentence can be given as punishment for very serious criminal offences to offenders over the age of twenty one years.
A life sentenced imposed for the offence of rape is at the judge's discretion but under the Crime (Sentences) Act 1997, a life sentence must be imposed when an defendant is found guilty of a serious or violent crime for a second time. The crime of rape was defined by section 44 of the Sexual Offences Act 1956. In 1994 there were reforms when the Act of Parliament was amended to include anal intercourse, incorporating the offence of buggery.
These reforms also included forced oral sex and recognised that using objects other than the penis could constitute rape. When interpreting the law regarding rape, or non-consensual sexual intercourse, the emphasis is on the lack of consent rather than the act itself. This concept was enforced by the Criminal Justice and Public Order Act 1994. This is the Act of Parliament that reformed the definition of the crime of rape. The Sexual Offences Act 1956 stated that rape was committed 'upon proof of penetration'.
This 'proof' may be difficult to find even with the use of DNA evidence but in 1956, it could be argued that this was near impossible. This was defined and confirmed in 199429. 30 In order for Joey to provide a defence, he would need to show that an element of the offence of rape did not exist. For example, he could argue that Phoebe had consented. It would be taken into consideration that alcohol had been consumed and also that Joey and Phoebe had been arguing.
It could be argued that Joey must have known that Phoebe did not want to have relations with him when she protested. However, this is a matter for the jury to decide. It could be argued that Joey believed that Phoebe consented. Perhaps her protests were believed to be 'passionate' – however, the defences of mistake and intoxication are unlikely to be successful due to the voluntary consumption of alcohol. Joey may have believed that a man cannot be found guilty of raping his wife. This is no longer true.
Dated law was replaced by new when the Court of Appeal stated that a husband could be found guilty of raping his wife in 199131. SECTION THREE : Joey & Monica : It is unlikely that Joey would be charged with assault as actual force has been inflicted rather than just a threat. It could be argued that any head injury, whether bleeding or not, can be construed as more than trivial. However, this is for the jury to decide. It is suggested in the facts that Joey has gone to the house intending to confront Ross.
It could be argued that his intentions were to inflict force upon Ross and therefore, there has been a transferral of malice. However, it is not clear what Joey intended to do and so no conclusion may be drawn here. If it is to be agreed that a head wound is more than trivial, a charge may be brought under section 47 OAPA. It should be noted that these offences are basic intent crimes and therefore a defence of intoxication will not suffice.