Rape was an offence under the
common law of
England and was classified as a
felony. A statute, the , entitled 'An Acte agaynst taking awaye of Women agaynst theire Wills' made abduction and forced marriage (or rape) of property-owning women or heiresses for the purposes of financial gain a felony in England. Those who aided and abetted the abduction or imprisonment were also guilty of a felony in England. The common law defined rape as "the
carnal knowledge of a woman forcibly and against her will". The common law defined carnal knowledge as the penetration of the female
sex organ by the male sex organ (it covered all other acts under the crime of
sodomy). The crime of rape was unique in the respect that it focused on the victim's state of mind and actions in addition to that of the defendant. The victim was required to prove a continued state of physical resistance, and consent was conclusively presumed when a man had intercourse with his
wife. "One of the most oft-quoted passages in our jurisprudence" on the subject of rape is by Lord Chief Justice
Sir Matthew Hale from the 17th century, "rape ... is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent." Section 16 of the
Offences against the Person Act 1828 read as follows: Here, "death as a felon" means death by
hanging and confiscation of the land and good, which were pronounced against felons, as opposed to the quartering which befell traitors. "Thus it was assumed that the definition of rape was so well understood and established by the common law of England that a statutory definition was unnecessary." The death penalty for rape was abolished by section 3 of the
Substitution of Punishments for Death Act 1841 which substituted
transportation for life. Transportation was abolished by the
Penal Servitude Act 1857, which substituted
penal servitude for life. These sections were replaced by section 48 of the
Offences against the Person Act 1861. Penal servitude was abolished by the
Criminal Justice Act 1948, which substituted
imprisonment for life. These sections were replaced by sections 1(1) and 37(3) of, and paragraph 1(a) of the Second Schedule to the
Sexual Offences Act 1956. In January 1982, the Government accepted an amendment to the Criminal Justice Bill the effect of which, if enacted, would be to compel judges to sentence men convicted of rape to imprisonment. This followed a case earlier that month in which John Allen, 33, businessman and convicted of raping a 17-year-old hitchhiker, had been fined £2,000 by Judge Bernard Richard, who alleged the victim's "contributory negligence". The final paragraph of section 4 of the
Criminal Law Amendment Act 1885 provided that it was rape for a man to have
carnal knowledge of a married woman by impersonating her husband. This provision was replaced by section 1(2) of the Sexual Offences Act 1956. Rape ceased to be a felony on 1 January 1968 as a result of the abolition of the distinction between felony and misdemeanour by the
Criminal Law Act 1967. The definition of rape at common law was discussed in
DPP v Morgan [1976] AC 182, [1975] 2 WLR 913, [1975] 2 All ER 347, 61
Cr App R 136, [1975] Crim LR 717, HL. A statutory definition of "rape" was provided by section 1 of the
Sexual Offences (Amendment) Act 1976. This was intended to give effect to the Report of the Advisory Group on the Law of Rape (Cmnd 6352) and to the opinions expressed by the
House of Lords in
DPP v Morgan. It read: }} In
R v R it was held that the word "unlawful" in that section did not exclude
marital rape (see Marital rape#England and Wales). Section 1 of the Sexual Offences Act 1956 was substituted on 3 November 1994 by section 142 of the
Criminal Justice and Public Order Act 1994, providing a new and broader definition: {{blockquote|{{unbulleted list The effect of this was to make what is termed
male rape amount to the offence rape instead of (where it took place in private and both parties were over 18 – s.12(1A) as substituted) or in addition to (in all other cases) the offence of
buggery. The first person to be convicted under the wider definition (for attempted rape) was Andrew Richards on 9 June 1995. The word "unlawful" did not appear in this section because of
R v R. That section was replaced on 1 May 2004 by section 1 of the Sexual Offences Act 2003, providing a still broader definition. References to vaginal or anal sexual intercourse were replaced by references to penile penetration of the vagina, anus or mouth. It also altered the requirements of the defence of mistaken belief in consent so that one's belief must be now both genuine and reasonable. Presumptions against that belief being reasonably held also now apply when violence is used or feared, the complainant is unconscious, unlawfully detained, drugged, or is by reason of disability unable to communicate a lack of consent. The change in this belief test from the old subjective test (what the defendant thought, reasonably or unreasonably) to an objective test was the subject of some debate, as it permits a man to be convicted of rape if he thought a person was consenting, were the circumstances thought by a jury to be unreasonable.
Capacity At common law a boy under the age of fourteen years could not commit rape as a principal offender as he was irrefutably presumed to be incapable of sexual intercourse. This rule was abolished by section 1 of the
Sexual Offences Act 1993. A boy under the age of fourteen years could commit rape as an accomplice. It was never decided whether a boy under fourteen could be convicted of attempting to commit rape as a principal, rather than an accomplice, if he attempted to have sexual intercourse or actually succeeded in doing so. The reported dicta did not agree on this point. A woman could not commit rape as a principal offender, by the nature of the offence, but she could commit rape as an accomplice.
Attempt Section 37(3) of, and paragraph 1(b) of the Second Schedule to, the Sexual Offences Act 1956 provided that a person guilty of an
attempt to commit rape was liable to imprisonment for a term not exceeding seven years. Attempted rape became a statutory offence under section 1(1) of the
Criminal Attempts Act 1981. But the maximum penalty was not affected by this. The maximum penalty for attempted rape was increased to imprisonment for life by sections 3(1) and (2) of the
Sexual Offences Act 1985. In the
Sexual Offences (Amendment) Act 1976, the expression "a rape offence" included: • attempted rape • aiding, abetting, counselling and procuring attempted rape
Compensation Special provision was made in relation to rape by sections 109(3)(a) and 111(6) of the
Criminal Justice Act 1988. ==See also==