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ilty man’. [13] Clause 1 of the Sexual Offences (Amendment) Bill reproduced the decision in DPP v Morgan, confirming the mens rea of rape to be recklessness and intent, with Section 1 (1) of the Sexual Offences (Amendment) Act 1976 including the Heilbron Committee's suggestions into the Sexual Offences Act 1956, giving rape a conventional definition, which was a first in almost fifty years. MORE

Actus Reus

The actus reus of rape was introduced in the SOA 1956, as unlawful sexual intercourse with a woman. It was only possible for a man to rape a woman, because the specific definition of sexual intercourse to have occurred was ‘penetration of the vagina by a penis’. [14] Therefore, clearly stating that the actus reus of rape was in relation to vaginal intercourse only.

Actus Reus & Consent

Baird [15] highlights that generally in rape cases the defences used are; that intercourse did not take place, that it took place but not by the person accused of committing the rape, that intercourse took place with the victim’s consent, or that intercourse took place with the accused believing that the victim was consenting. Baird also highlights that there are not many cases that are ‘whodunnits’, i.e. investigatory and also that the defence that sexual intercourse did not even take place is uncommonly used. The defences highlighted by Baird have likely to have become even rare since scientific developments in relation to DNA tests. [16] Consent is an issue, which is focused on in most rape cases, which is why the review of sexual offences was aiming to ‘clarify the law on consent’. [17]

Consent is one of the essential elements of rape. The current legal definition of rape is sexual intercourse which takes place without consent. [18] The law, originally, however, required that for rape to have occurred sexual intercourse was to have been carried out without the victim’s consent, whilst which the defendant was required to use or threat with violence or force and the victim resisting the act.

According to the 1956 Act, the offence continued throughout the penetration, meaning that if the victim had consented to begin with and then retracted whilst intercourse was taking place but the man still carried on with the act and failed to withdraw, it is then when rape was committed. [19] The case of R v Kaitamaki [20] reaffirmed what the 1956 Act had stated. In this case the defendant was charged with rape. In his defence, he stated that he thought the woman was consenting when he penetrated her, when he realised she revoked her consent, he did not withdraw. It was held, by the Privy Council, that the actus reus of rape was a continuing act, and when the defendant realised that the woman was not consenting, at this point the mens rea was formed, therefore ‘a man is guilty of rape if he continues intercourse after realising that the woman is no longer consenting’. This led to many questions such as, firstly, in regards to the initial act of penetration, whether it was done with or without consent or fault, the continuity by the man cannot amount to the act of penetration and if the woman withdraws her consent which then changes a consensual conduct to a sexual offence, how early is a man supposed to withdraw before committing a sexual offence?

Non-Existence of Marital Rape

Sexual intercourse in a marriage without consent was also legal, t