The Mens Rea of Rape

March 16, 2020

Section 5 (1) of the Sexual Offences Act of Jamaica states that a husband commits the offence of rape against his wife if he had sexual intercourse with his wife in any of the circumstances specified:

1. 
   Without her consent and;
   
2. 
   Knowing that she does not consent to sexual intercourse or recklessly not caring whether she consents or not.
   

Consent is not applicable in the following circumstances

1. 
   Extorted by physical assault or threats of physical assault to the wife or to a third person; or
   
2. 
   Obtained by false and fraudulent representation as to the nature of the act or the identity of the offender.
   

The circumstances referred to in section 5 (1) are that:

1. 
   That the spouses have separated and thereafter have lived separately and apart within the meaning of the Matrimonial Cause Act;
   
2. 
   There is in existence a separation agreement in writing between the spouses;
   
3. 
   Proceedings for the dissolution of the marriage or for a decree of nullity of marriage have been instituted;
   
4. 
   There has been made or granted against the husband an order or injunction, as the case may be, for non-cohabitation, non-molestation or ouster from the matrimonial home for the personal protection of the wife; or
   
5. 
   The husband knows himself to be suffering from a sexually transmitted infection.
   

The defendant was diagnosed as being HIV positive. Knowing of this he had unprotected sexual intercourse with two women. With the first woman he insisted that the intercourse was without protection having told her he had had a vasectomy. With the second he had used protection initially but later in the relationship had unprotected sex. He claimed that both were aware of his condition and had consented to unprotected intercourse with full knowledge of the risk. The women disputed this. The trial judge refused to allow the issue of consent to be put before the jury on the grounds that Clarence had been undermined and was no longer good law and the decision in R v Brown & ors [1994] 1 AC 212 had deprived the women of the legal capacity to consent to GBH in sexual activity.

Held: The case was remitted for retrial.
The Court agreed that Clarence was no longer good law. Those who, knowing that they are suffering HIV or some other serious sexual disease, recklessly transmit it through consensual sexual intercourse, and inflict grievous bodily harm on a person from whom the risk is concealed and who is not consenting to it will be liable under s.20. Moreover, to the extent that Clarence suggested that consensual sexual intercourse of itself was to be regarded as consent to the risk of consequent disease, again, it is no longer authoritative.

DPP v Morgan

The three appellants were convicted of rape following a violent attack. They had been out drinking for the night with a fellow officer in the RAF who invited them back to his house to have sexual intercourse with his wife while he watched. According to the appellants, he had told them that his wife would be consenting, although she would protest in order to enhance her sexual arousal. The circumstances were such that the wife had made it quite clear she was not consenting, and she sustained physical injuries requiring hospital treatment. The trial judge had directed the jury that the defendants' belief in consent had to be reasonably held. The jury found them guilty. They appealed contending there was no requirement that the belief need be reasonably held.

Held:

The accurate test for mens rea of rape is “honest belief” over “reasonable belief” see R v Beckford (1988)

NOTE THE PROVISIONS IN RESPECT OF SEXUAL OFFENCES COVERED BY THE SEXUAL

OFFENCES ACT OF 2009, IN PARTICULAR:

1. Rape – Section 3; what constitutes rape;

2. Grievous Sexual Assault – Section 4; what constitutes this offence and what are

the similarities and/or differences (if any) between this offence and rape.

3. When can a man rape his wife – Section 5 , and how does the statutory provision

reconcile with the common position as stated in the case of R v R

4. Statutory Rape – strict liability provisions – Section 10