Expert Legal Adviser MILTON FIRMAN asks: What do I do if I am charged with Rape?

Oct. 17, 2011 - PRLog -- You face a legal problem.  You may have sought advice and felt let down by the system.  Talk of hourly rates and vast fees.  Appointments you have to wait for, and even travel into town.  Delay, uncertainty and worry, lots of worry.  Now Milton Firman turns all of this on its head.

He advises immediately.  He is on call 24/7.  No appointments required.  He will see you at your home.  In the evenings or at weekends.  Fixed fees or no fees at all.  He is fearless and straight talking.  He is an experienced legal adviser, an expert in this field of law and offers advice regarding the best way forward for you.

First and foremost, get hold of the best possible legal advice, and act quickly.

The definition of Rape was contained in Section 1 Sexual Offences Act 1956

The offence applies to the rape of a woman or the rape of another man.

The offence of rape was restated in Section 142 of the Criminal Justice & Public Order Act 1994 to include anal sexual intercourse with another man without consent. Where anal intercourse takes place without consent, rape will be charged contrary to section 1 of the Sexual Offences Act 1956 and not buggery contrary to section 12 of that Act.

Note that, following R v R [1992] A.C. 599 and the removal of the word "unlawful" from the definition of rape it is clear that a husband may be prosecuted for raping his wife.
A boy under 14 is now capable in law of sexual intercourse - Sexual Offences Act 1993, sections 1 and 2. A woman may be convicted as an aider and abettor.

Where the victim is a woman and the intercourse is vaginal and anal, there should generally be separate counts of rape. The words "per vaginam" or "per anum" as appropriate appear in the indictment.

A case involving sexual intercourse over a period of time may disclose sexual offences in addition to rape.

Normally joined in the same indictment will be counts founded on the same facts or forming part of a series of offences of the same or similar character. The fact is that a judge may order separate trials.

Defence applications may be made to try the accused separately and to have separate counts considered in different trials.

The House of Lords allowed evidence to be adduced of an earlier acquittal where it was probative of the offence being tried. The House held that provided a defendant was not placed in double jeopardy, evidence that was relevant on a subsequent prosecution was not inadmissible because it showed or tended to show that the defendant was, in fact, guilty of the offence of which he had been earlier acquitted.

Although R v Z was a rape trial, the principal applies to any offence including non-sexual offences.

Consent will be an important factor when deciding not only what offence to charge but also whether it is in the public interest to prosecute. Sometimes consent is given, or appears to be given, but the law does not treat it as effective consent.

The law does not allow a person's consent to sexual activity to have effect in the following situations:

•where the person giving consent did not understand what was happening and so could not give informed consent, for example in the case of a child or someone suffering from a severe mental disability;

•where the person giving consent was under the relevant age of consent.
These two situations are different. In the first, the apparent consent is not treated as real consent because the person consenting did not understand enough to give real consent. This is a question of fact. In the second, consent is real as a matter of fact but the law does not allow it to count.

Sections 41-43 of the Youth Justice & Criminal Evidence Act 1999 came into effect on 4 December 2000. The sections restrict the circumstances in which evidence or questions about a complainant's sexual behaviour beyond the circumstances of the alleged offence can be introduced in rape or in certain other sexual offence trials. Prosecutors are advised by the CPS robust in dealing with applications under section 41.

At the trial of a person charged with a sexual offence as defined by section 62 of the YJCEA 1999, no evidence may be adduced or questions asked in cross-examination by or on behalf of the accused about any sexual behaviour of the complainant except with the leave of the court.

Such evidence will only be permitted if statutory criteria are met and the court considers that it may reach an unsafe conclusion on an issue to be decided in the case if such evidence were not to be heard. Any questions asked or evidence to be adduced must relate to a specific instance of behaviour.

Section 43 sets out the procedure to be adopted when applications are made under section 41. This involves adherence to time limits.

When presenting cases it is vital for the Prosecution to be aware of section 41(5) so that evidence is not unintentionally adduced by the prosecution that will allow the defence the opportunity to seek to adduce evidence of sexual behaviour of the victim in rebuttal of that prosecution evidence.

R v A - complainant's sexual history (House of Lords)

Sections 41-43 of the YJCEA were considered in the House of Lords case of R v A (17 May 2001). The House held that a prior consensual relationship between the complainant and the defendant might in some circumstances be relevant to the issue of consent. However, all the Law Lords accepted that the complainant must not be treated unfairly. The judgment emphasizes "the presumption of exclusion" under the YJCEA.

Consequently, prosecutors should encourage the court to consider section 41 in the context of the judgment overall. To do otherwise may lessen the practical effect of the reforms contained in section 41.

In R v M, the Court of Appeal considered an interlocutory application that a previous sexual relationship with a third party was relevant to his defence. The Court of Appeal rejected this, considering that to allow the cross-examination of this would be to "elicit material by the backdoor to impugn the credibility of the complainant as a witness." This is, therefore, a very useful case for prosecutors.

For more information, here is the deal.  Call Milton on 0161 485 1100 or 07909 900449 at any time or him at milton@miltonfirman.co.uk

Write to him at 24 Byrom Street, Altrincham WA14 2EN.

He will always be pleased to speak to you at any time.  In confidence.  With confidence.

# # #

It's Legal help lawyers and their clients to fight for real justice. We put the citizen first and fight for the civil liberties of all citizens