The case of rape has been an alarming matter for the entire world. Several people are victims of rape; hence, it is of importance to acknowledge what rape is and what would amount to rape. Under Section 1 of Sexual Offence Act (SOA) 2003 rape is defined as follows; rape is committed where D (who must be male) penetrates the vagina or anus or mouth of V (who, therefore may be a male or a female) with his penis and without V’s consent. In the previous Act rape was followed as a vaginal or anal intercourse with a person who didn’t consent to it, D either knowing that V didn’t consent or being reckless thereto. It’s a general view that normally offence of rape is committed by a male even though, a female might even aid or abet, or council or procure for a male to have non consensual intercourse with her. The maximum penalty for rape is life imprisonment .
Elements to prove the offence of rape is committed:
In order for the prosecution to prove that offence of rape is committed by a person then, it has to be proved of the Actus Reus (AR) and the Mens Rea (MR).
1. Actus Reus of Rape:
The guilty act of the person for the offence of rape consists of the penetration of the vagina, anus or mouth by the penis. This penetration is a continuing act unless the victim’s consent is vitiated or the moment the D is aware that V no longer consents for the sexual intercourse . Thus, if D even continues even after realizing that consent has been revoked, then, D commits the AR of the rape (Cooper and Schaub) and in Kaitamaki v The Queen .
Section 79(9), SOA 2003 defines ‘vagina’ to include vulva, hence the slightest degree of penetration is sufficient to constitute the complete offence that is to say that it would not be necessary for the hymen to be ruptured or either it to be ejaculated (Hughes) .