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Rape

Rape prosecutions- Our lawyers are extremely experienced in defending those accused of rape and will put together a specialist team to deal with your case at the High Court.

We know the types of forensic analysis undertaken by the police and tactics that are used in court against those accused of rape, we can guide you through the complicated rules of evidence that will dictate how your defence is best presented at court.

We deal with clients who are embarrassed and traumatised by the allegations of rape that they are facing. Nothing fazes us. We understand that you may be traumatised and upset and will work with you through the difficulties to achieve the result you want.

The result of a conviction for rape can be devastating, which is why it is in your interests to contact us immediately.

We regularly defend those accused of rape and other sexual offences and will put together a team with the experience and determination to defend you. We have a proven track record in such cases.

Following a High Court Rape acquittal our client stated:-

I am extremely relieved that 15 months after this nightmare began, I have finally got justice. From the very beginning I maintained my innocence, but what was terrifying for me and my family was the prospect of imprisonment for something I did not do.

I am really sorry for the real victims of rape, but I am glad that justice has been done. I am very grateful to Aamer Anwar and his legal team for all their hard work and believing in me. I now can put this behind me and get on with my life.

Rape (s1)

The offence is committed when the accused-A

  • Penetrates the complainer-B
  • the vagina, anus or mouth of B
  • with A’s penis
  • without B’s consent
  • and without any reasonable belief that B was consenting

Lack of Consent

Consent is defined in the 2009 Act in s 12 as “free agreement” and is central to the offence. The Act does not provide a definition of “free agreement”.

The Act however identifies a number of situations where free agreement is absent;

Statutory list of situations where there is no free agreement (s13)

  • B is incapable of consenting because of the effect of alcohol or any other substance
  • B agrees because of violence used or threats of violence made to B or any other person
  • B agrees because B is unlawfully detained by A
  • B agrees but is deceived by A as to the nature or purpose of the conduct
  • A induces B to agree by impersonating someone known personally to B
  • Where someone else agrees to B’s participation

Additionally, if B is either asleep or unconscious, then there is no “free agreement” to what took place and therefore no consent (s14)

Rape & Reasonable Belief (s16)

The term ‘reasonable belief’ is not defined within the Act

It will be for the court or jury to decide whether A had a belief that was reasonable and in reaching that decision, regard is to be had to what steps, if any, A had undertaken to ascertain whether the other party was consenting.

Penetration

Penetration needn’t be complete, any degree is enough, and it’s not necessary for there to have been any emission of semen. Even the slightest encroachment by the penis into the relevant part of the victim’s body is likely to be considered penetration.

Consent

This is usually the key issue in rape cases. A person must be in a position to give or refuse consent. A person consents if she agrees by choice and has the freedom and capacity to make that choice. To be free to make a choice, a person must be free from any physical pressure, but it is a matter for a jury as to what degree of coercion has to be placed upon a person’s mind before she is no longer agreeing by choice. That must be proved by corroborated evidence.

Accused’s Belief in Consent

Any such belief must be reasonable, and regard must be paid to all the circumstances, including any steps which were taken by the accused in order to establish whether the victim consented. Even where it is accepted that the victim didn’t consent, it must still be considered whether or not the accused honestly believed she was consenting. An absence of honest belief that she was consenting is essential. That is to be proved by corroborated evidence. If the accused believed she was, he’s not guilty of rape.

Rape & Corroboration

There must be corroborated evidence that the accused intended to rape the complainer, either knowing or believing that she was not consenting, or reckless as to whether she was consenting or not. Being “reckless” here means failing to think about or being completely indifferent to the question of whether she was or wasn’t consenting.

Due to the nature of sexual crime, particularly rape, there can be significant difficulties in obtaining corroboration. As most rapes take place in private, with no witnesses and frequently little if any physical injury.

Support for the victim’s lack of consent can come from the evidence of others that she was distressed afterwards, provided her distress was genuine, was caused by what happened, and wasn’t due to other extraneous factors like shame or remorse.

That support can also come from evidence of any injuries she sustained or forensic evidence such as DNA (Please see our section on Forensic Science and DNA). Signs of violence may be the consequence of, and evidence of, her lack of consent. Support for the fact that the accused was aware that he did not have consent to do what he did, or was reckless as to whether he had as such consent or not may come from evidence of force or violence or observed distress at the time, but not from evidence of distress subsequent to the incident.

Rape- Sentencing

In Scotland, rape can only be prosecuted in the High Court of Justiciary and if convicted the maximum penalty available to the court is life imprisonment. In addition to a custodial sentence, offenders will also be required to sign the Sex Offenders’ Register.

If convicted of rape, custody is inevitable however the input of your legal team can make all the difference to the length of sentence served dependent on mitigation or skilled negotiation taking place with the Crown prosecution on your behalf.