Is This Rape?
Rod HaylerRod has specialised in criminal defence work since 1998. He is a trial advocate of 17 years’ experience and, as a Higher Courts Advocate, he represents clients in Crown Courts and in the Court of Appeal.
You’re a male university student. You connect with a female student on Tinder
and you arrange to meet up at a local nightclub. You’re at the club with a few mates when the girl messages you to say she’s arrived. You find her. She tells you that she’s left her friends at another bar because she wanted to come and meet you. You go outside to talk. The girl suggests that you go with her to her student accommodation. You agree. She calls an Uber. You go with her. She leads you into her shared apartment on campus and then into her bedroom. She closes the door. You both lay on the bed. You start to take off each other’s clothes. You put on a condom and you start to have sex.
After no more than a minute, you hear the girl make a noise or say something but you’re focused on what you’re doing. A few seconds later she makes the noise again. Then, on the third occasion, she pushes your shoulder and you realise she’s saying “stop”. You stop immediately and get off her and off the bed. You ask her if she’s ok. She looks upset and she clearly isn’t ok. You get dressed. You apologise and leave.
Early the next day the police attend your student accommodation and arrest you for rape.
Subject to Investigation - the story continued
This was the scenario faced by our client just over a year ago. He was held in police custody and interviewed. He answered questions and explained what had happened from his point of view. He was placed on police bail for 28 days, with conditions prohibiting him from contacting the girl or from attending her address. At the expiry of the 28 days, he is released from bail but he remains “subject to investigation”.
As a result of the ongoing police investigation:
- The University Student Discipline Department bans our client from campus
- He is prevented from attending lectures, seminars or tutorials
- In his final year of an undergraduate degree course, he is forced to complete his studies remotely, relying on internet teaching and emailed notes
- He sits his final exams, alone, in a hotel room
- He is prohibited from travelling to the USA, where he has family
- He knows that any application for a Green Card, to work in the USA, will fail – this had been his post-graduation ambition
- He knows that, if he is charged with rape, his name will be printed in the local press and anyone searching his name on the internet will discover the details of the case
- He lives with the fact he is being investigated for rape and that he will go to prison, probably for five years’, if convicted.
Our client remains subject to this state of police investigation for over 12 months, at the end of which, he is informed that the CPS have declined to prosecute him, the police will take “no further action” and he can get on with his life. He is overcome with relief.
Was This A Rape? - The Law
The answer, as ever, is not straight forward.
Our client didn’t intend to commit a rape. He didn’t go out that night meaning to force the girl to have sexual intercourse with him against her will. He didn’t use force, he didn’t threaten. They met on Tinder. The girl invited him back to her place and into her bedroom. So she must have been consenting, right?
Rape, as defined by Section 1 Sexual Offences Act 2003, is as follows:
(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
From the facts as we have them, we know that our client intended to have sex with the girl (a). We can assume from the fact that she said “stop” and pushed our client’s shoulder, that she was not consenting to the penetration or that she had ceased to consent at some point (b). So the issue will entirely hinge on whether our client “reasonably believed” that the girl was consenting (c).
The factual background to the incident in the bedroom would suggest that he might have had a reasonable belief that she was consenting to sex. But was his belief still reasonable after she had told him to stop not once, not twice, but three times before he eventually did? His actions upon realising what she was saying (getting off her and the bed, apologising and leaving) might also suggest that he was surprised that consent had been withdrawn.
Might our client have been guilty of rape for a matter of a few seconds? Or does it depend on exactly what he heard the girl saying or what he thought the girl was saying? If he didn’t realise she was saying “stop” until the third occasion she said it, then he still had a reasonable belief in consent until that point. Would a jury accept that he didn’t know that the girl was telling him to stop until the third time she said it?
Ultimately, the reviewing lawyer at the Crown Prosecution Service must have taken the view that the prospects of a conviction were too slim because of the factual background and the incredibly narrow basis upon which the Crown would be inviting a jury to convict. For what it’s worth, and perhaps unsurprisingly, we think that is right.
The point of this article
We present this article, not to suggest that the law concerning rape is wrong or to criticise the police for arresting our client after the complaint of rape was made. We present it to demonstrate some of the complex issues involved in cases of this nature and the incredibly difficult task faced by investigators and prosecutors, not to mention defence lawyers and ultimately juries, as they seek to apply the law to the facts. The national press repeatedly pour scorn on the supposedly low prosecution rates and even lower conviction rates in rape cases. When members of the public read such articles they would be forgiven for assuming that these cases relate to stranger rapes, involving acts of aggression and violence. The reality is that the vast majority of rape cases involve slight variations on the one described above. Its often not about whodunnit. Its about whether an offence has actually been committed or not.
How Old Bailey Solicitors can help
The Solicitors and Advocates at Old Bailey Solicitors are specialists in defending allegations of rape and serious sexual assault. We know that the truth is rarely as it is first presented. We also know how the lives of those accused of such crimes can be put on hold (at best) or irrevocably ruined while the police investigate and the CPS take their time to make a decision.
If you or anyone you know is facing issues of this nature, contact us, for specialist, compassionate but straightforward advice.