To answer this question, the law of rape must first be outlined and discussed. Then it will be necessary to describe the appropriate defences to the charge. Then the relevant changes in both of these areas and also the changes in the rules of evidence will be outlined and explained. To conclude it will be necessary to relate all these changes back to the position of the alleged victims and discuss whether they have hand a positive effect, or have been detrimental to their position. Rape was originally defined in the Sexual Offences Act (1956) as being a man having unlawful sexual intercourse without consent.
At this time it was only possible for a man to rape a woman. This is because the specific definition was that there had to be penetration of the vagina by the penis for "sexual intercourse" to have occurred. It also meant that sexual intercourse without consent within marriage was legal, as sex was seen as being part of being married. It was also legal for a man to use reasonable force on his wife to have sexual intercourse. The crime of rape is act specific, so the Actus Reus of rape has to be the sexual intercourse without consent.
The Sexual Offences Act (1956) states that the state of mind of the defendant must be that: "At the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it. " (Sexual Offences Act (1956) Section 1 b). This means that the Mens Rea of rape can be either intent or recklessness. In this case the type of recklessness in question is Cunningham recklessness, which is where the person foresees the risk, but goes ahead anyway. In DPP V Morgan (1976) Lord Hailsham described the mens rea as being:
"Intention of having intercourse willy-nilly, not caring whether the victim consented or not" (Lord Hailsham DPP v Morgan (1976)). The Sexual Offences Act (1956) also provides that for rape to occur, it is not necessary for the man to ejaculate, and the offence is committed upon proof of penetration alone. As stated previously, under the definition of rape given in the Sexual Offences Act (1956) there was no such thing as marital rape. This was because the intercourse had to be unlawful, and sex between husband and wife, whether rightly or wrongly, was seen as being part of the marriage.
The immunity of the husband had been eroded gradually over the years so that if there was a separation order in force (Clarke 1949), a decree nisi (O'Brien 1974), or even a non-molestation order (Steele 1977), there could be liability for rape. However if the husband and wife were still living together, the mans immunity remained intact, not only for rape but also indecent assault (Caswell 1984). It wasn't until 1991 that a man was convicted of raping his wife. In the case of R v R (1991) the House of Lords upheld a verdict, and decided that it was wrong that there could be no rape within marriage.
This was a ruling under common law, which was later confirmed in statute (the Criminal Justice and Public order Act (1994). ). This ruling overturned hundreds of years of precedent, and there had been a suggestion that marital rape could simply signify a temporary breakdown in the relationship, and that it becoming criminalised would slow down or even prevent the reconciliation process. The Criminal Justice and Public Order Act (1994) section 142 amended the definition of rape to include a category of anal rape, which now meant that it was possible for men to be raped.
Due to the specific definition of rape, it is not legally possible for women to commit rape, only men can do this. However it is possible for a woman to be charged with being an accomplice to rape, as in DPP v KCC (1997) where two teenage girls were convicted of this offence. The presumption that only males over the age of 14 could commit rape was abolished by the Sexual Offences Act (1993). It is now possible for any male over the age of 10 to be charged with rape. The main defences to rape are consent and mistake.
Although it may be attempted to be used as a defence, intoxication is not valid as a defence to rape. This is because intoxication is not a valid defence to any crime where the mens rea can be recklessness, and as previously stated the mens rea to rape can be either intent or recklessness, thus invalidating the intoxication defence. Consent is a defence to a charge of rape. It is a lack of consent that turns sexual intercourse into rape. The consent must be true and therefore cannot be obtained through force, fear or fraud.
The consent is also not true if the victim is senseless through drink or drugs as in R v Malone (1998). The Sexual Offences Act (1956) Section 1 , states that there is no true consent if the accused pretends to be the husband of the victim as this would be fraud, however there was the question 'what a bout boyfriends of partners? ' The answer to this came via the case of R v Elbekkay (1995). This case involved a couple who had gone out with a friend, and upon returning home the victim went to bed and fell asleep. Later the friend got into the bed with the victim and began to have sex with her.
At first she believed that it was her boyfriend and when she realised that it wasn't she pushed him away and stabbed him. The defendant was convicted of rape and subsequently appealed. His appeal was dismissed. The Court of Appeal said that in a modern society, the principle that rape is committed if a person obtains consent by impersonating the husband should be amended to include the impersonation of any long-term sexual partner. This would presumably include homosexuals as well as heterosexuals. There is another kind of fraud also involved in the discussion of rape.
This is where the fraud occurred in relation to the act itself. An example of this is the case of R v Williams (1923). The defendant, a singing teacher, had obtained the 16 year-old victims consent by telling her that it was a way of improving her breathing. The consent was negatived by this lie. In R v Linekar (1995) the defendant didn't pay a prostitute for sex. Because he had not lied to her as to the nature of the act, or impersonated her husband or partner, the consent was true and therefore no rape had been committed.
There is a heavy dependence in rape cases on in proving there was or wasn't consent and therefore the mens rea of the defendant. However this can cause the burden of proof to shift onto the victim rather than the defendant. This is because the victim's state of mind is called into question, as it is they who give the consent. This means that the victim now has to prove that there was a rape rather than the defendant proving he didn't commit rape. This can give the impression that it is the key witness (i. e. the victim) on trial, making the whole experience extremely traumatic for the victim.