Rape

Introduction: what a rape allegation means for you

An allegation of rape is one of the most serious criminal allegations a person can face. A conviction is very likely to result in a lengthy prison sentence. Even being accused of rape can have a significant impact on your reputation, relationships, employment, and future. So, when faced with an allegation it is important to understand the law, the evidence and the defences that are available.

When thinking of rape, most people probably think of stranger-rape involving an offender lurking in a dark bush or alleyway waiting for an unsuspecting victim to happen past. That does happen but it is the minority of cases in the UK. Most allegations involve people who are known to one another, often as current or former intimate partners but not always.

A person accused of rape is entitled to a fair trial. The prosecution must prove the case beyond reasonable doubt, and the burden remains on the prosecution to prove guilt throughout and not on the defendant to prove his innocence. An allegation alone is not proof of guilt. That said there is always a stigma that comes with being accused of rape so deploying the strongest possible defence aimed not only at securing an acquittal but proving innocence is a sensible strategy.

What does the law say?

The modern law of rape is contained in the Sexual Offences Act 2003. This legislation significantly changed the approach to sexual offences by replacing older offences and introducing clearer modern definitions around consent and sexual autonomy.

What must the prosecution prove?

Under the Sexual Offences Act 2003, a person commits rape if they intentionally penetrate another person’s vagina, anus, or mouth with their penis, where the other person does not consent and the defendant does not reasonably believe that they consent.

The offence is therefore made up of several separate elements. The prosecution must prove each part beyond reasonable doubt. If any element is not established, the defendant should not be convicted.

Intentionally

The penetration must be intentional. That means that the man must intend to insert his penis into the other person.

Arguably, a man could say that the penetration was not intentional as he was not in a position to form the intention, for example, because he was too intoxicated or unconscious. Although practically, it is difficult to imagine anything but a very unusual case where this would come into play.

Penetrates

So far as the law is concerned, penetration begins at the point of penetration and ends at the point of withdrawal. This means that withdrawing and penetrating a second time would amount to a second rape.

The slightest degree of penetration for the briefest moment is sufficient to found a charge of rape.

For the sake of clarity, Parliament has specified that references to parts of the body include surgically constructed body parts, which means that a transman can commit rape with his surgically constructed penis and a transwoman can be raped in her surgically constructed vagina.

Consent

Consent is frequently the central issue in a rape allegation. You can read our deep-dive into the law on consent.

The prosecution must prove both that the complainant did not consent and that the defendant did not believe she was consenting.

The law defines consent as a person agreeing by choice and having the freedom and capacity to make that choice. Consent must be voluntary and genuine. Therefore, a person cannot consent if they are pressured into agreeing to sex or if they are unable to make a decision, for example if they are too drunk to consent or if they are asleep.

A defendant who says he believed that the complainant was consenting must have a reasonable basis for that belief. It is for the prosecution to prove that the defendant did not reasonably believe he had consent. Nonetheless, a sensible defendant will take time to consider all the events of the period in question so that he can clearly and compellingly give his reasons for believing that the complainant was consenting… if he wishes to be acquitted.

There is no requirement for the prosecution to prove that the complainant said ‘no’ or that they attempted to physically prevent the rape taking place. They can show through the surrounding evidence that there was no consent or belief in consent. Such evidence could include accounts from witnesses who were present before and after the alleged rape, evidence that the rape was reported to somebody other than the police shortly after it happened, communication records, video evidence, etc etc.

Evidence in rape cases

The evidence in rape cases can usually be broken down into three categories: witness evidence, digital (including communications) evidence, forensic evidence.

Witness evidence

The prosecution’s primary witness will usually be the complainant. While the defence’s primary witness is nearly always the defendant. That should come as no surprise as they are the people who were there and can say what went on.

Most cases will include other witnesses as well. They will typically be people who can speak to what went on before or after an incident. For example, one witness might tell the court that the complainant was extremely drunk and appeared unable to make decisions for herself. Another might say that they saw the complainant after the incident and she immediately reported that she had been assaulted.

There may also be witnesses who hear things that can corroborate either party’s account. A witness who hears the sex may be able to give an insight into whether the complainant was enthusiastic or distressed.

In a recent case, our client was accused of attempting to rape a woman in her own home after he had gone there with a group of friends. The complainant described the defendant making unwanted advances and touching her throughout the evening. However, another witness who had been present came forward and gave evidence about the events of that evening. The witness had not been present during the alleged attack but she did report that in fact it was the complainant who had been inappropriate and who had been the one making unwanted advances towards the defendant. She also gave evidence that the defendant had reported to her the following morning that the complainant’s behaviour had continued and escalated after the witness left. Our client was acquitted by the jury.

Digital evidence

Communications

This can be text messages, call logs, Tinder messages, anything that gives an insight into what went wrong. Sending messages that can be incriminating when taken out of context is one of the big mistakes we see defendants making.

A defendant who claims not to know the complainant at all could be undone by call logs that show they in fact have been in touch. More common though are messages that appear to say something did happen. For example, we encountered a defendant who had sent messages saying he was ‘sorry’ and that his behaviour was ‘wrong’ to a woman who subsequently accused him of raping her.  The prosecution attack line is always going to be, ‘you were saying sorry because you had just raped her and you were hoping by apologising she wouldn’t go to the police’!

Other digital evidence

Photographs and video recorded on mobile phones is becoming an increasingly rich seam of evidence for prosecutors in all criminal cases including rape cases. Such evidence can inform the jury about the relationship in the hours before and after the incident. Sometimes it even captures the incident itself.

Footage from traditional CCTV cameras is also often very helpful. In one of our recent cases, a defendant was captured by CCTV walking with the complainant inside the foyer of his block of flats in the moments after she said he had raped her. The footage showed her walking several ahead of him towards the exit. Before she reached the exit, she turned and embraced the defendant and kissed him goodbye. That doesn’t mean she wasn’t raped but it is the sort of thing that raises eyebrows among jury members. Our client was acquitted.

Because digital evidence can be crucial, it is important that it is preserved. That means that if you are a defendant, you should not delete the material. It also means that you should instruct a solicitor as soon as possible so that they can take steps to ensure evidence held by third parties is preserved.

Forensic evidence

Forensic evidence covers a very wide spectrum of expert evidence. But, in rape cases, it is most likely to include things like DNA, fingerprint, and medical evidence as well as things like bitemark analysis.

It is important to understand that forensic evidence is nothing like what you see on the TV. It is not an infallible source or truth. It cannot reliably solve a crime on its own absent any other evidence. Forensic evidence is a piece of evidence, a strand that can bring together other elements. It is often the result of assumptions and interpretations made by analysts rather than an impossible to dispute fact.

It should also be noted that fingerprints and DNA of innocent people can be present at a crime scene. Imagine a situation where a rape is alleged to have occurred at a defendant’s home; the defendant denies there was any sexual contact but agrees the complainant was at his home. It will not be surprising to find DNA from the suspect on the complainant or her clothing since she was in his home, which is bound to be covered in his DNA.

Common defence strategies

The correct defence approach depends entirely on the facts. Typically, the defence will look to challenge key planks of the prosecution evidence and put forward their own evidence to corroborate the defendant’s version of events.

It is always a good idea to instruct an independent forensic evidence to examine prosecution forensics. The defence expert is probably not going to say that the prosecution has got it all wrong, but they will frequently add much needed nuance to the prosecution’s conclusions and can comment on the appropriateness – and thus reliability – of the prosecution’s methods.

Evidence should also be gathered from any witness who is likely to be able to assist the defendant’s case. Our view is that it is better to speak to a witness who has nothing useful to say than to risk missing a vital piece of evidence!

The defence does not need to prove exactly what happened. The prosecution must prove guilt so that the jury is sure the defendant is guilty.

Common mistakes defendants make

People accused of rape often feel under enormous pressure and may make decisions that later affect their case.

Speaking without thinking – a person who has been accused of rape is under a huge mental strain whether they are guilty or innocent. We have seen more than one defendant on the back foot at trial because they were poorly advised in the police interview or took no advice at all. You must have a clear idea of what you want to convey to the police before you are interviewed. You cannot delay the interview much if you have been arrested, but you can make sure you have a good solicitor who can help you organise your thoughts and put your side of the story clearly.

Not collecting the right evidence – it is expensive to defend yourself we can’t deny that. But failing to explore every avenue is an error that can cost dearly. It is vitally important that you have the right evidence from the right people to give you the best chance of succeeding at trial. That evidence might come from a friend, but often it will come from an expert who can analyse evidence from DNA, fingerprints, computers, and so on. Identifying the best expert and getting them on board will give you the best possible chance of acquittal.

Deleting material – if we had £1 for every time we heard a client say that they had X, Y or Z that would corroborate their account and show the other person is lying, but they deleted it, then you wouldn’t be reading this and the author would have retired years ago. Don’t delete important evidence!

Not getting advice – we know, we know, if you didn’t do it then you have nothing to fear. Well, you do. Most police officers – the overwhelming majority – are not out to frame anybody for something they didn’t do; however, they don’t know what happened. They are just people who have their own ideas and prejudices, and who will form their own opinions. Make sure that you can properly articulate your side of the story by instructing a solicitor who can anticipate police questions and help you get your side across clearly.

What happens next?

After a rape allegation is made to the police, they will begin an investigation. Some of our clients have heard through friends of friends that an accusation has been made, but frequently the first you will know about it is when the police turn up to arrest you. You should assume that once you have been arrested the police will search your home to seize any evidence that might be relevant to the investigation. This could be evidence the complainant says she has left in your home such as lost jewellery, but it will also include her DNA on furniture where the rape is said to have occurred. The police will seize any device likely to have photographs or messages on them: that’s phones and computers but they are also likely to take hard drives and maybe even smart watches.

Once an arrest has been made, the police will interview you about what happened. They want to get your side of the story, but they also want to test your account to see whether you are telling the truth. That means they will be looking for errors and inconsistencies in what you tell them – this is why getting it right early is so important.

After the interview, the police will assess the state of their evidence. They may decide there are further avenues of investigation that need to be pursued or they may conclude they have sufficient evidence to pass the matter to the Crown Prosecution Service for their lawyers to decide whether you should be charged with an offence or not. This is an important point in the case where your solicitor should be making representations to the prosecutor and submitting any evidence that might persuade them not to authorise a charge against you. Although the police are under an obligation to look at evidence that leads away from a suspect, we believe that you should be proactive and get as much evidence as possible yourself.

Hopefully, the prosecutor will decide against sending you to court. If they do charge you with rape, then you will appear in the magistrates’ court for your case to be sent to the Crown Court. This is usually a very short hearing but it will be important as the court will be considering whether to release you on bail or keep you in prison until your trial. We will always be aiming to keep you out of a cell at every stage and will remind the magistrates that you are not guilty and that they can effectively manage any concerns they have about you being at liberty by imposing bail conditions that avoid contact between you and the complainant.

There will usually be two Crown Court hearings: the plea and trial management hearing (PTPH) and the trial. At the PTPH the judge will make directions to ensure that the case is properly prepared and ready for trial. At the trial your barrister and the prosecution barrister will present their cases and the jury will reach a verdict.

Sentencing in rape cases

You won’t be surprised to hear that rape is a very serious criminal offence that carries a maximum sentence of life imprisonment. Even at the least serious end, a convicted offender is facing 4 to 7 years in prison.

You can view the sentencing guidelines that the judge will use for yourself. In short, the judge will assess the seriousness of the offence. Rape committed in the victim’s home or that involve her abduction are more serious as are rapes that result in pregnancy or leave the victim infected with a STI. Offenders who detain their victim for a prolonged period of time, those who use violence to commit the offence, and those who degrade and humiliate their victims can also expect to be treated more harshly. The court will also look at things like the planning that went into the offence and whether it was committed in breach of trust. Offenders who record the offence, especially if they do so for commercial exploitation of the footage or victim, will be treated more harshly.

A single rape conviction will result in prison sentences of between 4 and 19 years. Where there are multiple offences, especially where offences are committed on different dates over a period of time or against different victims, then the sentence is likely to be significantly increased.

How Chetwode Criminal Defence Solicitors can help

A rape allegation requires careful and specialist representation from the earliest stage.

At Chetwode, we provide advice and representation throughout the investigation and court process. We will examine the evidence, advise you on the strengths and weaknesses of the prosecution case, and ensure your defence is properly prepared.

We understand that being accused of rape can have a profound effect on every aspect of your life. Our approach is discreet, thorough, and focused on protecting your rights.

Case studies

False allegation

Our client, DD, was accused of multiple offences against two sisters who lived next door to him. They were aged 15 and 11 at the time the complaint was made. DD denied the accusations and said that the older girl had made a false allegation because DD had reported her boyfriend to the police causing him to be arrested and imprisoned for serious drug dealing offences. He believed that the younger sister had been persuaded to support the older sister’s allegations.

We obtained witness statements from various people who were able to confirm that DD had reported the elder sister’s boyfriend to the police. At trial, we were able to show that there were major inconsistencies and gaps in the accounts given by both of the girls.

The jury acquitted DD on all counts.

A video called ‘The Rape’

Our client’s home was searched part of a police investigation into an unrelated matter. The police found an old home video recording entitled, ‘The Rape’, which depicted our client and his wife taking part in what was portrayed as the rape of a young girl. It had been filmed around 25 years before police found it. The police obtained ‘expert’ evidence from a paediatrician who asserted that the girl shown in the video had learning difficulties and was definitely no more than 13 years of age. The police could not track the girl down, apparently. Our client was charged under the old sexual offence laws with rape and ‘having unlawful sexual intercourse with a woman who is a defective’.

We were able to track the girl down, quite easily as it happens. She provided a statement and her birth certificate confirming that she was 20 years old when the video was filmed, that she did not have any learning disabilities and that the video had been filmed with her willing consent. Surprisingly, the prosecution insisted on proceeding to trial at which the jury acquitted our client.

This case goes to our earlier point about being proactive and getting as much evidence yourself as possible rather than trusting the police to do it. They claimed not to be able to find the woman in the video despite having all the resources of the state to throw at the problem. We were able to track her down very easily by asking people in the area if they knew her – we had her name just like the police did – and she was found still living about three streets away from our client!

FAQs

Can someone be convicted of rape without physical evidence?

Yes. A conviction can be based on witness evidence alone, but the prosecution must still prove the case beyond reasonable doubt.

Does a person have to say “no” for rape to have occurred?

No. The issue is whether there was genuine consent and whether the defendant reasonably believed there was consent.

Can rape be alleged within a relationship?

Yes. Consent must exist on each occasion. Being in a relationship or having consented to sex previously does not automatically mean consent existed on a particular occasion. Until the 1991 case of R v R, the law had accepted – for reasons known only to itself – that a husband cannot rape his wife. You can read more about that decision here, but suffice to say even some Victorian judges believed a man could rape his wife as far back as 1888.

Can someone be charged years after an alleged rape?

Yes. There is no simple time limit preventing prosecution of serious sexual offences, including historic allegations. The oldest allegation we ever dealt with was charged 52 years after the incident was alleged to have occurred!