Working paper on sexual offences / Home Office, Criminal Law Revision Committee.
- Great Britain. Criminal Law Revision Committee
- Date:
- 1980
Licence: Open Government Licence
Credit: Working paper on sexual offences / Home Office, Criminal Law Revision Committee. Source: Wellcome Collection.
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![they have occurred. If a woman is induced by threats not involving the use of violence (for example by a threat of dismissal from a job) to allow sexual intercourse, has she consented to it? If she is induced to consent by a promise fraudulently made, for example, a promise of employment, has she consented? (2) When a man encourages another (in lawyer’s language, aids and abets another) to have sexual intercourse with a woman knowing that she is not consenting and that other believes that she is consenting, of what offence, if any, should the man who does the encouraging be convicted? (3) Should the law continue to presume irrebuttably, as it does at present, without allowing any evidence to the contrary, that all boys under the age of 14 are physically incapable of sexual intercourse (and so of committing rape), although boys under this age are capable of sexual intercourse and do in fact commit acts which would be rape if they were over 14? (4) Should husbands be guilty of rape, which they are not at present, if, whilst cohabiting, they make their wives have sexual intercourse with them when they know there is no consent? (5) Should so-called oral intercourse without consent be a form of rape and punishable as such? (6) Should anal intercourse (buggery) whether with a man or woman without consent be a form of rape and punishable as such? (7) Should any form of vaginal penetration without consent be rape? CONSENT IN RAPE 20. Until the second half of the nineteenth century, the courts seem to have had no problems about what amounted to consent. If a woman was made by the use of force to have sexual intercourse, or submitted in fear under a threat of force, she was adjudged to have been raped. She had not consented to the intercourse. This is still the law and, in our opinion, should continue to be the law. In the ordinary case of rape there has been force or the threat of force. Where sexual intercourse is procured by fraud, there is under section 3 of the Act of 1956 a special offence which we propose should continue. The judges and Parliament have intervened, in a few situations, to interpret the notion of absence of consent so as to extend the law of rape to what are basically cases of fraud. In paragraphs 21 to 25 we consider whether the law in this respect should be altered. 21. Thus in Flattery (1877) 2 Q.B.D. 410 it was adjudged that there had been no consent when a woman allowed sexual intercourse in the belief, induced by the defendant, that he was performing a surgical operation. This case was followed in Williams [1923] 1 K.B. 340 in which the defendant, who had been engaged to give lessons in singing and voice production to a girl aged 16, had sexual intercourse with her under the pretence that her breathing was not quite right and that he had to perform an operation to enable her to produce her voice properly. These cases have to be considered against another line of cases starting with Jackson (1822), Russ and Ry 487 C.C.R. and culminating in Barrow (1868) 11 Cox C.C. 191. In the latter case, the Court for Crown Cases Reserved held that the woman’s consent to sexual intercourse was a defence even though she was deceived into thinking that the defendant was her husband. The decision was not well received: in Flattery (supra) four out of](https://iiif.wellcomecollection.org/image/b3222350x_0014.jp2/full/800%2C/0/default.jpg)
