LWZ114 Lecture 10: Law of Crime 5
SEXUAL OFFENCES
RAPE
❖ S48(1) CLCA: A person who has sexual intercourse with another person without the consent of that other person –
➢ (a) knowing that that other person does not consent to sexual intercourse with him; or
➢ (b) being recklessly indifferent as to whether that other person consents to sexual intercourse with him –
shall (whether or not physical resistance is offered by that other person) be guilty of rape and liable to be imprisoned
for life.
PHYSICAL ELEMENTS
Sexual intercourse
❖ S5: ‘sexual intercourse’ includes any activity (whether of a heterosexual or homosexual nature) consisting of or
involving:
➢ (a) penetration of the labia majora or anus of a person by any part of the body of another person or by any object;
➢ (b) fellatio; or
➢ (c) cunnilingus.
❖ S73(1): Sexual intercourse is sufficiently proved by proof of penetration.
❖ S73(2): No person shall, by reason of his age, be presumed incapable of penetration.
❖ Abraham: Insertion of fingers into a vagina comes within the SA definition of ‘intercourse’.
❖ R v Murphy: Sexual intercourse is a continuing act, beginning with penetration and ending with withdrawal.
➢ So if D becomes aware that V is not consenting after commencing the act, but nevertheless continues, it is rape.
Lack of consent
❖ Camplin: Lack of consent does not necessarily involve resistance (also s48(1) CLCA).
❖ Mayers: A sleeping victim cannot consent to intercourse.
❖ Francis: A person who is too intoxicated to consent, cannot give consent. However, lesser degrees of intoxication
may be consistent with consent.
❖ Rodin: Intellectually disabled victim can consent to intercourse only if:
➢ She understands the nature of intercourse, and
➢ She is aware of her right to refuse.
❖ Lynch: Mere want of intelligence does not negative the absence of consent to a sexual act → prosecution must still
prove that V did not consent.
❖ Morgan: A person can consent to intercourse only if she has a basic understanding of the sexual character of
penetration. (esp. youths)
Threats and pressures
❖ Hallett: Consent extracted through force or threats of force is no consent.
❖ Fisse: Threats to a family member will vitiate consent, but possibly not threats to a stranger.
❖ Egan (SC SA)
➢ Only threats of violence may vitiate consent.
➢ True consent must be free and willing consent.
➢ Pressures in the way of compliments, blandishments etc. may be legitimately directed towards securing consent.
❖ Olugboja (English Ct of Appeal; not followed yet in SA): Whether non-violent threats vitiate consent is decided by
the jury using its ‘combined good sense, experience and knowledge of human nature’.
Frauds
❖ Papadimitropoulos: Fraud vitiates consent only if it relates to the nature of the act or the identity of the accused.
➢ *D tricked V into believing that she went through a marriage ceremony with him.
➢ *V consented to intercourse only because of this belief.
➢ V understood the act of sexual intercourse → D’s fraud did not vitiate consent.
➢ It is the mistake as to the nature of the act or identity of the accused, rather than the accused’s fraud, that vitiated
consent.
➢ But D’s fraudulent conduct induced consent → punishable under a less serious offence, eg. of procuring sexual
intercourse by fraud or false pretences.
❖ R v Linekar
Document Summary
S48(1) clca: a person who has sexual intercourse with another person without the consent of that other person . (a) knowing that that other person does not consent to sexual intercourse with him; or. S5: sexual intercourse" includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving: (a) penetration of the labia majora or anus of a person by any part of the body of another person or by any object; S73(1): sexual intercourse is sufficiently proved by proof of penetration. S73(2): no person shall, by reason of his age, be presumed incapable of penetration. Abraham: insertion of fingers into a vagina comes within the sa definition of intercourse". R v murphy: sexual intercourse is a continuing act, beginning with penetration and ending with withdrawal. So if d becomes aware that v is not consenting after commencing the act, but nevertheless continues, it is rape.
