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.
16/72 (page 10)
![should be irrelevant. Nor should the use of threats or other intimidation short of threats of force amount to rape. Most of us are of the opinion that the distinctions drawn in the cases cannot bear the weight they have been made to carry, and we doubt whether many laymen would regard the examples we have given as cases of rape. In particular, we consider that the distress which the victim of such frauds or threats may suffer is, though a serious matter, not really comparable with the fear and shock that often accompanies true rape. Most of us therefore take the view that inducing sexual intercourse by fraud or threats (other than threats of force) or other intimidation should be criminal and attract heavy penalties but should not be forms of rape. 25. A minority of our members consider that the present is not the right time in which to narrow the law of rape. For over 100 years now the crucial question to be asked in rape cases has been not whether the act was against the woman’s will but whether it was without her consent. The victims in Flattery and Williams would not have consented to the penetration if they had known the defendant’s purpose; nor would they have done so in the impersonation cases had they known the true identity of the defendants. It may be thought that in sexual intercourse the personality of the other partner is of the highest importance. In the opinion of the minority, while there may be sound argu- ments for not extending the law of rape so as to include all, or some other forms of fraud, threats or intimidation, there can be none, other than a desire for legal tidiness, for excluding from the law of rape conduct which is now rape. Leaving the law as it is at present is not likely to affect adversely many persons. Cases of the kind under discussion are very rare and when they occur they are difficult of proof.! We invite comment. AIDING AND ABETTING 26. When dealing with rape cases the courts sometimes have to consider unusual and revolting circumstances. The Court of Appeal had to do so in the case of Cogan and Leak [1976] 2 Q.B. 217 in which C was charged with rape and L with aiding and abetting in circumstances where L invited C to have intercourse with his, L’s wife. C believed that she was consenting but she was not, and L knew that she was not; she submitted because she feared that she would be beaten by her husband if she refused. The Court of Appeal quashed C’s conviction because of the decision of the House of Lords in Morgan [1976] A.C. 182. L then submitted that he was entitled to be acquitted as charged because C had been adjudged not to have raped Mrs L and, as all that had been alleged against him had been that he aided and abetted C, he could not be guilty of aiding and abetting an offence which had not been committed. The Court of Appeal thought that such a result would bring discredit on the law. They upheld L’s conviction on the ground that under the Accessories and Abettors Act 1861 L could have been charged as a principal in the first degree (that is as one who had done the criminal act) and punished as such. It followed that no injustice had been done. The House of Lords refused L leave 'Under our proposals sexual intercourse with a woman who did not consent because she was unconscious or asleep would continue to be rape.](https://iiif.wellcomecollection.org/image/b3222350x_0016.jp2/full/800%2C/0/default.jpg)
