When a person is accused of a crime like rape they often feel as if they have nowhere to turn. The stigma means many people hide the allegation until the stress becomes unbearable. The first step anyone should take if they are accused of this offence is to contact a specialist rape solicitor if only to speak to someone non-judgemental and unbiased.
The Law Explained
Rape is covered by section 1 of the Sexual Offences Act 2003. It can be committed by a man on a woman or a man on another man. It consists of vaginal, anal or oral intercourse which is non-consensual.
It must be intentional. For a person to be guilty, he must not have believed that the other person consented, and this belief must have been reasonable. This means that an ordinary person at the time would generally agree that the person had consented. A jury would consider the situation as it happened at the time, also taking into account whether any steps had been taken to find out whether the other person was consenting. This may seem odd, given that actions and not words are often more important in sexual communication, and asking for permission is uncommon.
If somebody freezes in shock or panics but doesn't actively object, they may still be regarded in law as having not consented. The law doesn't require that somebody puts up a physical or verbal fight. No violence has to be used for it to be rape. The point is that the jury will look at the total situation and whether the person freely agreed or not.
If violence was used or threatened against the victim or another person, then the starting point will be that the sex was not consensual. A court will start from the position that there was no consent if the victim was held captive, asleep, unconscious, drugged or incapable of communicating because of a disability.
There is also a starting point that there was no consent if a person was deceived into having sex by impersonating someone the person would have had sex with. This might occur, for example, if a burglar pretends to be the husband of a woman in the house.
Strategy in Rape Cases
There is no defence strategy that is effective in every rape case. But there are certain areas that a rape solicitor will immediately explore.
This can take the form of medical forensic evidence which the prosecution lawyers say proves that sexual or physical contact took place. For example, this may be DNA obtained from skin cells or bodily fluids. It is foolish to accept what the prosecution say on this front if the defendant has denied all contact without the rape solicitor getting a full, independent forensic report.
Telephone and email evidence
Communication between the alleged victim and the defendant is often hugely important and should be considered closely by the specialist rape solicitor and the client together. Often texts or emails can be misinterpreted, and only the client will be able to provide proper context.
It is not unusual in these cases for the person to have sent messages to the complainant apologising for a rape that never took place. It really is that sort of offence. Once a person is accused they will do anything in their power to make the allegation go away, even if the allegation is false. A specialist rape solicitor will be aware of these common elements and able to guide a client through the potential minefield.
Was the sexual relationship consensual?
If a rape or sexual assault allegation is made, the issue of consent is something which is often an important issue in the preparation of the defence case. The evidence that the prosecution has served needs to be looked at in detail by the rape solicitors together with the client. Evidence which points towards violence is not of course always conclusive, as sex can take many forms. If the client claims that the sex was consensual, a jury would usually expect that this would be something that he would have mentioned in an interview.
In some circumstances, perhaps because so much time has passed that the client doesn't even remember the incident at first, or because the client was in no fit state to give any comment in interview, a jury will likely be more understanding if the defence of consent isn't raised until some time after the interview.
The Background, Behaviour, and Actions After the Event of the Complainant
An analysis by the defence of the complainant is essential. Researching and understanding the background, behaviour, and response of the person making the complaint is essential. This can include inconsistencies in the story given by the complainant to different people, any other background, or other allegations made in the past, and behaviour on the date in question. That said, the jury will take the view that a person making a complaint has the right to private life and a private sexual life, and simply attacking a their credibility must be carefully considered before being used as part of the defence strategy.
A rape case will always be dealt with in the Crown Court. The maximum sentence for rape is life imprisonment, but a rape without violence or kidnapping might typically attract a sentence of five years if convicted after a trial. Sentences of more than this are reserved for much more serious cases.