What constitutes rape?
Under the s 1 of the Sexual Offences Act 2003 (SOA 2003), a person (A) is guilty of the criminal offence of rape if:
- he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
- B does not consent to the penetration, and
- A does not reasonably believe that B consents.
Under s 2, whether a belief is reasonable is determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
What constitutes consent?
According to s 74 of SOA 2003, a person consents if s/he agrees by choice and has the freedom and capacity to make that choice.
A victim is deemed not to have the capacity to make that choice if s/he is: mentally incompetent; suffers from a medical condition which limits their ability to consent or communicate consent; intoxicated; drugged; asleep or unconscious; below the age of consent.
Consent may be given to one sort of sexual activity but not another, for example, to vaginal but not anal sex, or penetration with conditions, such as wearing a condom. Consent can be withdrawn at any time during sexual activity and each time activity occurs.
When deciding if someone has the freedom to consent, issues to consider include: whether the complainant was a victim of domestic violence and a partner has used force or power to remove a complainant’s freedom to consent; if the suspect has abused a position of trust, (eg, a family member, teacher, religious leader, employer or doctor); the complainant was dependant on or significantly younger than the suspect; or was not old enough to consent.
If you have not given consent or were not capable of giving consent to a sexual act, it is irrelevant what you were wearing, how much you had to drink or where the act took place. The sooner and incident is reported to the police the more forensic evidence can be collected, and this will help bring a conviction. At the police station, ask to see the Sexual Offences Liaison Officer.
Advantages of reporting rape
- it is an opportunity for you to present your side of the story;
- the attacker could be prosecuted;
- if you are frequently attacked by the same person, reporting it will help stop future attacks.
Disadvantages of reporting rape
- reporting an incident does not necessarily mean the attacker will be prosecuted;
- once you have reported an incident you will have little control over proceedings.
All police investigations start with the collection of forensic evidence. These tests are done by taking swabs from any part of your body that the assailant came in contact with. It is important you do not do any of the following before the swabs are taken:
- brush your teeth;
- smoke a cigarette;
- eat or drink;
- change your clothes;
- go to the toilet;
- clear or clean the scene of the area where the incident took place.
Incidents of sexual violence that are reported to the police will usually be recorded on video. This video could be played to the court at a later trial. If your statement is not recorded on video, a police officer will take down a written statement from you. You will be asked to read your statement before signing it to check it is correct.
Every police investigation concerning sexual violence will be overseen by an investigating officer. A specially trained officer (STO) will support you throughout the investigation and trial, if there is one. During the investigation the police may:
- contact any witnesses and ask them to make a statement;
- seize any evidence, such as CCTV, computers or mobile phones;
- send evidence away for analysis;
- carry out identification procedures, like identity parade or video ID;
- arrest or interview a supect.
Charging a suspect
On completion of the investigation the police will pass the evidence to the Crown Prosecution Service (CPS) who will decide, based on the evidence, whether or not the suspect should be charged with a criminal offence.
Once charged, the suspect can either be released on bail and attend the magistrates’ court on a set date, or held in custody and appear in court within 24 hours.
Withdrawing a complaint
If you no longer wish the police to continue their investigations, or do not want the case to go to court, you can opt not to give a statement or ask for any statement you have made to be withdrawn.
You will have to explain in the withdrawal statement why you no longer wish the investigation to continue. If you admit to giving false information in a previous statement, you could be investigated for wasting police time or perverting the course of justice.