Section 1 makes it an offence for any person to intentionally penetrate orally, vaginally or anally another person without that person’s consent if they do not reasonably believe that the other person consents.
Whether belief in consent is reasonable will be determined having regard to all the circumstances including any steps taken to ascertain whether the other consents. Reasonable belief in consent may be shown in a number of ways including by the actions and words of the person during the incident.
The basic provision is that a person consents if they agree by choice and have the freedom and capacity to make that choice. The essence of consent is the agreement by choice, however the law does not require the complainant to have resisted physically in order to prove a lack of consent.
There are some situations however where it will presumed that the complainant did not consent and these include circumstances where the accused used or threatened violence or the complainant was asleep, unconscious, held captive, drugged or incapable of communicating because of a disability. The defence can rebut these presumptions.
There are also conclusive presumptions about consent that cannot be rebutted, for example, if it is proved that the accused deceived the complainant by impersonating their partner.
Whether a person consented to sexual intercourse can be a complex matter and it is important to seek specialist legal advice to navigate this complicated area. We will ensure that you are fully informed on this issue and provide the best advice and strategy for your defence.
The Code for Crown Prosecutors explains how prosecutors are meant to make decisions on whether to prosecute. When deciding whether to prosecute a rape allegation, the CPS will apply a two stage Full Code Test. This includes an evidential test and a public interest test. In terms of the evidence, there must be a realistic prospect of conviction.
Prosecutors should adopt a merits based approach to the evidential stage of the Code and ask whether, on balance, the evidence is sufficient to merit a conviction taking into account what is known about the defence case. It is therefore important to seek specialist advice at the earliest opportunity. In some cases, the correct strategy can be effective in persuading the prosecution not to take the case to court. If you are charged, we have the experience and expertise to defend you at court.
We meticulously analyse all aspects of the prosecution case and explore every detail of defence material. The collection and strategic deployment of defence material can make the biggest difference in cases of rape. We will immediately consider the following issues;
The Prosecution may rely on forensic evidence to prove their case. Forensic evidence in rape cases can include hairs and fibres, skin cells and bodily fluids. As specialists in defending allegations of rape we know that differences in the interpretation of forensic evidence can have a dramatic impact on the result of a case. We will instruct the best forensic experts to consider and challenge the prosecution expert’s findings.
Correspondence and communications to and from the complainant and the accused can provide crucial evidence in rape cases. It is surprising just how differently conversations can be interpreted and the extent to which this can impact upon the credibility of an allegation. We will apply our considerable experience to the analysis of email and social media evidence and our tactical expertise to ensure that it is used to its best advantage.
It can be important in cases of rape that your character and background is presented to decision makers. We can obtain and provide character references and other sources of information to demonstrate your background and the person you are.
Our dedicated team of experts led by Hilary Doherty specialise in defending sexual allegations.
Damage to your personal reputation and career can be irreparable and the repercussions can be life changing if the allegations are not managed carefully.
The law in relation to rape has changed over the years and the law that applies will be dictated by when the alleged incident took place.