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.
17/72 page 11
![to appeal. The difficulty about this decision is that if L had been charged as a principal in the first degree the evidence would have proved that he was not one. He was an aider and abettor and nothing else. In another case of a similar kind the aider and abettor could be a woman. If the Court of Appeal’s judgment stands as the law then women could be convicted as the doer of the physical act involved in rape. Men—and women—behaving like L should be punished for what they have done, that is, for aiding and abetting a man to have sexual intercourse with a woman without her consent. It should matter not that the man who had such intercourse was acquitted of rape. We provisionally recommend that the subtleties, and probably faulty reasoning, of the Court of Appeal’s judgment should be replaced by a statutory provision to the effect we have indicated. The Law Commission have the law of acces- sories and abettors under review and we hope that they will accept this recommendation. PRESUMPTION OF PHYSICAL INCAPACITY IN Boys UNDER 14 27. Under the present law, as we have already stated, a boy under 14 cannot be convicted of either rape or unlawful sexual intercourse whatever his actual physical capacity. Boys under this age are capable of sexual intercourse, however, and do in fact commit acts which would be rape if they were over 14, and the fact that they do is, we think, a matter of public concern. Cases of this kind occur in what have come to be known as “‘gang bangs’’, that is a series of sexual assaults by a group of youths on a girl. Such cases are very serious indeed as the girl often suffers severe emotional injury as well as physical harm. The older boys will be convicted of rape and punished severely, while a boy under 14, who may have had a leading part in the rape, can only be treated as ‘having aided and abetted. Many think it is a scandal that this should be the law. At present we can see no justification for the continued existence of this limitation of the law of rape. If our recommendation was accepted the prosecution would, of course, have to prove, as in all cases involving defendants under 14, that the boy knew that he was doing wrong. MARITAL RAPE 28. For the purposes of this Working Paper we adopt the generally accepted opinion that at common law, with certain exceptions, a husband does not commit rape if during marriage he forces his wife to have sexual intercourse with him, and that the effect of the phrase ‘‘unlawful sexual intercourse”’ in section | of the Sexual Offences (Amendment) Act 1976 is to incorporate the common law into the section. If, in the course of forcing her, he inflicts injury upon her he may be guilty of an offence, the nature of which will depend upon the seriousness of the injury and the intention with which it was inflicted. Further, the courts having jurisdiction in matrimonial cases may be able to provide the wife with some protection. Many think that the time has come for this law to be changed. During the passage of the Sexual Offences (Amend- ment) Bill, arguments were put forward in favour of change. The Home Secretary, on behalf of the Government, gave an undertaking that the question 1]](https://iiif.wellcomecollection.org/image/b3222350x_0017.jp2/full/800%2C/0/default.jpg)
