Defence of Charge of Rape

Definition of rape

  1. The definition of rape was substantially changed by the Sexual Offences Act 2003, which came into force on 1 May 2004.
  2. Offences committed before 1 May 2004 are prosecuted under the Sexual Offences Act 1956. Under the 1956 Act, the statutory definition of rape is any act of non-consensual intercourse by a man with a person, and the victim can be either male or female. Intercourse can be vaginal or anal. It does not include non-consensual oral sex. The courts had defined consent as having its ordinary meaning, and lack of consent could be inferred from the surrounding circumstances, such as submission through fear. It is a defence if the defendant believed that the victim was consenting, even if this belief was unreasonable, and this is a matter of fact for the jury.
  3. Offences committed on or after 1 May 2004 are prosecuted under the Sexual Offences Act 2003. The 2003 Act extends the definition of rape to include the penetration by a penis of the vagina, anus or mouth of another person. The 2003 Act also changes the law about consent and belief in consent.
  4. The word “consent” in the context of the offence of rape is now defined in the Sexual Offences Act 2003. A person consents if he or she agrees by choice, and has the freedom and capacity to make that choice. The essence of this definition is the agreement by choice. The law does not require the victim to have resisted physically in order to prove a lack of consent. The question of whether the victim consented is a matter for the jury to decide.
  5. The meaning of consent can be of particular relevance in rape where there has been, or is, a pre-existing relationship between the defendant and the victim, or where domestic violence has existed prior to the rape. As the 2003 Act makes it clearer what is meant by the term “consent”, it should help juries decide whether the victim was able to, and did in fact, give his or her consent at the time.
  6. The Sexual Offences Act 2003 requires the defendant to show that his belief in consent was reasonable. In deciding whether the belief of the defendant was reasonable, a jury must have regard to all the circumstances, including any steps he has taken to ascertain whether the victim consented. In certain circumstances, there is a presumption that the victim did not consent to sexual activity and the defendant did not reasonably believe that the victim consented, unless he can show otherwise. Examples of circumstances where the presumption applies are where the victim was unconscious, drugged, abducted or subject to threats or fear of serious harm.
  7. People who have consumed alcohol may reach such a level of drunkenness that they no longer have the capacity to give consent. The courts recognise that this stage may be reached well before they become unconscious.
  8. Proving the absence of consent is usually the most difficult part of a rape prosecution, and is the most common reason for a rape case to fail. Prosecutors will look for evidence such as injury, struggle, or immediate distress to help them prove that the victim did not consent, but frequently there may be no such corroborating evidence.
  9. Although the majority of victims are women, and taking action against rape is included as part of the CPS Violence Against Women Strategy, we will apply our rape policy without discrimination in all cases.


  1. If the defendant is convicted of rape, the judge decides the sentence. There are guidelines for judges when sentencing defendants convicted of rape. The prosecution does not have any power to ask for a particular sentence.
  2. The guidelines state that relationship and acquaintance rapes should be treated by the courts as seriously as stranger rape. Male rapes are as serious as those between a man and a woman. All types of rape are equally serious.
  3. Before being sentenced, a defendant is entitled to make a plea in mitigation.
  4. If the defendant pleads guilty to an offence but disagrees with the prosecution version of events, the court has to decide on which version to sentence. In order to do this, the court may hold a ‘Newton hearing’, The court will only hold such a hearing if it feels that there would be a substantial difference in sentence if the defendant were to be sentenced on the prosecution’s version of events. If the court considers that there would be no substantial difference to sentence, the defendant is sentenced on his version of events.
  5. If, however, the court feels that it would make a substantial difference to sentence, the court can hear evidence from both parties and can make a decision based on representations from both the defence and the prosecution. At the end of the hearing, the judge must announce whether the prosecution has proved its version of events beyond reasonable doubt.
  6. If the judge passes a sentence which the prosecution considers to be unduly lenient because it does not reflect the seriousness of the offence, the CPS wiII ask the Attorney General to review the sentence.
  7. If the prosecution does not consider the sentence unduly lenient but the victim disagrees, the victim can ask the Attorney General to consider it, but this has to be done within 28 days of the sentencing decision. If the CPS decides not to submit the case for the consideration of the Attorney General, it must notify the victim without delay so that the victim’s option of complaining directly to the Attorney General is preserved, and so that the Attorney General has sufficient time to consider the case.
  8. If the Attorney General thinks that the sentence is unduly lenient, the Attorney General can refer it to the Court of Appeal.
  9. The application to the Court of Appeal must be made within 28 days of the sentence. The Court of Appeal decides whether or not the sentence is unduly lenient and, if it is, whether to increase the sentence.

This article is based on public sector information licensed under the Open Government Licence v2.0. The original information can be found here; https://www.cps.gov.uk/legal-guidance/public-order-offences-incorporating-charging-standard

If you are concerned you may be facing charges for rape, or are already facing charges, it is essential you contact us as quickly as possible.

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