What improvements, if any, will there be to the present law on consent and on mistaken belief in consent in rape cases as a result of the Sexual Offences Bill 2003?

Essay by nevchiuUniversity, Bachelor'sC+, December 2003

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Under existing English Criminal law, a person cannot ordinarily be found guilty of a serious criminal offence unless two elements are present: the actus reus or guilty act and the mens rea or guilty mind. The prosecution has to prove that the accused has committed the crime charged and the accused is innocent unless proven beyond reasonable doubt that he is guilty.

Actus reus is defined in Haughton v Smith as the elements of an offence excluding those which concern the mind of the accused. ?An act does not make a man guilty of a crime unless his mind is also guilty.? The actus reus of rape is sexual intercourse without consent.

Mens reas is defined as the state of mind expressly or impliedly required by the definition of the offence charged. There is a presumption that it is an essential ingredient in every criminal offence, liable to be displaced either by the words of the statute or by the subject matter.

If a particular intent or state of mind is an ingredient of a specific offence, which must be proved by the prosecution; but the nonexistence of mens reas is a matter of defense. Thus for a defendant to be guilty he should have the mens reas which does not correspond to the mistaken belief, i.e. the mistaken belief was not genuine and actus reus.

A man under the new Sexual Offences Bill 2003 under clause 1(2) will have the mens rea if either he knows that the victim does not consent or he is reckless as to whether the victim consents. It is clear from the decision of the House of Lords in DPP v Morgan . The House of Lords held that if the defendants honestly believed that the woman consented they would not be liable, however...