Rape is considered to be the most serious of a wide range of sexual offences. The definition of rape is not entirely straightforward.
It is not a defence to a charge of rape that the victim was a prostitute or was promiscuous.Rape can only be committed by a man on a woman. A homosexual rape committed by a man on another man is not included in the legal definition of rape. In some circumstances, a woman may be convicted of “art and part rape” committed by a man on another woman if she assists in the rape.
In general terms, if the man believes that the woman consents to having sexual intercourse then he cannot be guilty of rape. Rape can occur when intercourse has taken place following threats by the man of imminent harm or violence towards the woman.
Difficulties often arise in cases where intercourse has taken place with the consent of both parties but the woman withdraws her consent during intercourse. Rape will occur in cases where the man persists beyond the point at which the woman has indicated that she no longer consents to intercourse.
• INDECENT ASSAULT
Indecent assault is normally an assault by way of the physical touching of another person or the threat of physical touching. An indecent assault can be committed by a male or female on a member of the same or opposite sex.
To be indecent assault there must be some form of attack or assault on the victim, although there need not be any physical contact between the assailant and the victim. The assault may take the form of gestures and putting the victim in a state of fear, eg, forcing a woman at knifepoint to expose herself.
A defence may exist where there is consent to the touching or where the accused shows that he or she believed that the other person consented.
An assault of a “sexual” character is required for the crime of indecent assault.
There is no real definition of what constitutes “indecency”. It is accepted that the sexual integrity of the victim must be violated. Which part of the body is touched, the nature of the contact, the situation in which the contact occurred, the words and gestures which may have accompanied the touching and all the other circumstances surrounding the conduct (including threats), will all be relevant in determining whether an indecent assault has been committed.
• OFFENCES INVOLVING YOUNG PERSONS
In cases where the victim is a young girl, sexual intercourse with a girl under the age of 12 may be charged as rape at common law. Distinctions have to be drawn between intercourse with girls under the age of 13 and intercourse with girls under the age of 16. A charge of unlawful sexual intercourse would normally apply for cases involving girls between the age of 12 and 13.
It is an offence for a man to have, or to attempt to have, unlawful sexual intercourse with a girl of or above the age of 13 years and under the age of 16 years. This is punishable by a sentence of imprisonment.
A defence may be available where a man under the age of 24 years who has not previously been charged with a like offence has reasonable cause to believe that the girl is of or above the age of 16 years. Nevertheless, the courts will not readily accept a defence of this nature unless supported with substantial evidence to show that the accused person had reasonable grounds for that belief. It is not sufficient simply to rely on the girl’s appearance.
• INDECENT EXPOSURE
Indecent exposure is regarded as a form of breach of the peace, shameless indecency or lewd practice.
Such a charge is not confined to exposing parts of the body that are usually concealed. Any exposure of the body which can be deemed to be shameless indecency is an offence, even although it may have no sexual overtones whatsoever. A crime of Indecent exposure will often be proved where there has been a “sexual” act whereby the accused derives sexual gratification but the offence is not confined to such behaviour.
Indecent exposure will take the form of a sexual act towards another person and will be an offence if the other person does not, or cannot, lawfully consent. This charge can apply whether the victim is an adult or child. It is irrelevant whether the exposure takes place in public or in private.
Even if the other person consents to the exposure, an offence of shameless indecency may still occur.
For example, when the exposure takes place in public or in circumstances whereby the exposure can be seen by members of the public. The purpose of the exposure is important. Exposing oneself in a shamelessly indecent manner, even although this is not done for sexual gratification, can still be a crime of indecent exposure. Examples of such conduct are where a “streaker” runs naked across a rugby pitch.
Where the exposure takes place in private, this may still constitute an offence of indecent exposure.
For example, a strip-tease at a private function could amount to indecent exposure if it could amount to an affront to public decency.