Rape provides some substantial definitional problems, and this has impacted upon how this study has been conducted. The definition of rape for this thesis includes rape charged under section 1 of the Sexual Offences Act 1956 and rape charged under section 1 of the Sexual Offences Act 2003, and rape of a child under the age of 13 charged under section 5 of the Sexual Offences Act 2003. Defendants are charged under the 1956 Act if the alleged offending occurred before 1 May 2004. The 2003 Act defines section 1 rape as being where (A) intentionally penetration of the vagina, anus, or mouth of another person (B), where (B) does not consent and (A) does not reasonably believe that (B) consents. Section 74 of the Act provides that consent means that the act was agreed to by choice, having the capacity to make the choice. The offence under section 5 of the 2003 Act does not require a lack of consent, and it is no defence that the appellant believed the complainant to be 13 or over.731 As discussed
below, this has obvious implications for the nature of the defence raised at trial. Section 1 of the 1956 Act defined rape as having sexual intercourse (vaginally or anally) with a person who does not consent and that the suspect was reckless as to whether the other consented.
730 Including Lord Chief Justice, Vice President of the Court of Appeal Criminal Division, and
President of the High Court.
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What may now be known as anal rape under section 1 of the 2003 Act was sometimes charged as ‘buggery’; section 12 of the 1956 Act. This is included in the sample as it appears indistinguishable from what it now termed anal rape. Sexual offences relating to animals are omitted. Offences relating to photographs / images are omitted. In the rape appeals, 105 appellants (45%) were convicted of one or more offence of rape, and 166 appellants (71%) were convicted of more than one offence type. Multiple counts is included as a variable in this study. The outcome variable for this thesis relates to the rape conviction: so if the conviction for another offence is quashed but the rape conviction stands, this is recorded as an unsuccessful appeal. The same holds for murder if, for instance, a conviction for weapons offences is quashed but the murder conviction is upheld.
As was highlighted in Chapter 4, whilst there are only three sections which charge the specific offence of rape (2003 Act sections 1 and 5; 1956 Act section 1), there are numerous different kinds of rape. Historical sexual offences are often charged under the 1956 Act. It will be observed that the primary difference between the Acts is that what is now charged as oral rape may not have been rape under the 1956 Act, but may have been charged as indecent assault (section 14 of the 1956 Act), or some other offence. For the purposes of the data collection exercise the charging decision of the prosecutor was followed. This means that if what could now be charged as rape was charged as another offence under the 1956 Act, it is not included in the dataset as the appellant was not convicted of rape at the time. For the purposes of this thesis, it makes no difference that the appellant could now have been charged with rape.
The Sexual Offences Act 2003 provides a number of definitional challenges. Its overlapping sections are well documented.732 Other offences which could be
considered as essentially identical to rape, such as section 2 assault by penetration, or section 9 sexual activity with a child, are not included. Again, the charging decision of the prosecutor will be adhered to, rather than stating what
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the appellant could have been charged with. The reason for this is that there could be important reasons why particular charges were placed; it would not be appropriate to begin second-guessing the charging decisions of the prosecutors.
Section 1 of the 2003 Act is silent as to any age requirement, whilst section 5 relates to children under the age of 13. Thus, offences relating to children aged 13 to 16, and offences against anybody over the age of 16 are all charged under section 1. This study has also utilised a variable for these categories, and for when the complainant was aged 16 or 17, or over the age of 18. There is a qualitative and quantitative difference between an offence committed against a person aged over 18 (i.e. and adult) and a child; an offence against a child aged under 16 (16 being the age at which consent can legally be given), and those aged 13 to under 16. These differences are highlighted by statistics relating to conviction rates for different age groups of complainants. Thomas found that different categories of rape had different conviction rates in Crown Court trials. Trials alleging rape of a female under the age of 13 resulted in conviction 58% of the time, but 75% of the time for rape of a male under 13.733 Rape of a female
aged 16 or over had a conviction rate of 47%, whilst rape of a male 16 or over had a conviction rate of 58%. It is not clear whether it is the female complainant which leads to these differences, however, as rape of a female aged under 16 had a conviction rate of 62%, which is higher than the conviction rate for rape of a male under 16 (51%).
Table 5.1, above, provided the number of cases which featured the different age categories in the murder and rape appeals. Appeals against convictions for rape against complainants aged 13 – under 16, and 16 – 17 both had success rates of 42%, but note that the number of appeals for these categories was relatively small. The success rate for offences against children under the age of 13 was 35%, and 30% for adult complainants. These figures show some difference but this is not particularly large. The 42% success rate is likely to be impacted by the
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smaller sample size. The age category of the complainant is included as a variable in this study, and so will be returned to in Chapter 7.
An additional component which is analysed in this study is whether there is a relationship between the nature of the defence offered at trials, and the outcome of appeals against conviction. Again, the different categories of rape (by age) have an impact on this. Only a small number of appellants attempted to deny
mens rea (consent or belief as to age) in offences against children under the age
of 13 – this is obviously because this is not a defence to that offence. 89% of appellants denied the actus reus for this offence. As the age of the complainant increases, appellants were more likely to have denied mens rea: 37% denied
mens rea in the 13 – under 16 group; 57% in the 16 – 17 group; and 63% in the
over 18 group. Clearly, therefore, the nature of the offence has an impact upon the nature of the case at trial, and by implication the kinds of appeals which are likely to be successful in the Court of Appeal. However, as the success rate across the age categories are relatively similar (as discussed in the previous paragraph) this by itself does not appear to have a close relationship.
The inbuilt age categories, the division of complainants between genders, and the 1956 Act may lead to the conclusion that there is not only one offence of rape, but several. In this thesis, all these rape offences have been coded as one offence: rape. An alternative approach would have been to separate the different categories of rape into individual offences, in order to determine whether particular variables have relationships with outcomes in particular kinds of rape. Whilst this may be an avenue for further exploration and analysis in the future, this approach is not taken here. This is because the focus of this thesis is to explore the relationships between variables and the broad offences of rape and murder. To the extent that further refinement of the offence categories would have been beneficial, this is a limitation. However, all of the categories of rape offences are still broadly the offence of rape, and so using the single offence is justifiable.
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