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Chapter 39: Rape

Table Of Contents  

[39.0] Introduction

This chapter will examine the offences of: 

·                     'Rape', as provided for by section 137 of the Penal Code (Ch. 26); and 

·                     'Attempted Rape', as provided for by section 138 of the Penal Code (Ch. 26). 

When interpreting any section of the Penal Code (Ch. 26), section 3 must be considered. That section states: 

'This Code shall be interpreted in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.' (emphasis added) 

See: Sexual Offences Act 1956 (UK), section 1. 

Section 166 of the Criminal Procedure Code (Ch. 7) states: 

'When a person is charged with rape and the court is of the opinion that he is not guilty of that offence but that he is guilty of an offence under one of the sections 141(1) ['Indecent Assaults On Females'], 142 ['Defilement Of Girl Under Thirteen Years Of Age'], 143 ['Defilement Of A Girl Between Thirteen And Fifteen Years Of Age, Or Of Idiot Or Imbecile'], 145 ['Procuring Defilement Of Woman By Threats Or Fraud Or Administering Drugs'] and 163 ['Incest By Males'] of the Penal Code, he may be convicted of that offence although he was not charged with it.' [words in brackets added] 

See also: sections 159 and 175 of the Criminal Procedure Code (Ch. 7) & R v Okea & Kenikaesia (Unrep. Criminal Case No. 5 of 1991; Ward CJ; at page 5). 

As regards a 'Submission Of No Case To Answer', see R v Lutu [1985 – 86] SILR 249. 

The law relating to 'Submissions Of No Case To Answer Generally' is examined commencing on page 372.

[39.1] Rape

[39.1.1] Offence 

Section 137 of the Penal Code (Ch. 26) states: 

'Any person who commits the offence of rape shall be liable to imprisonment for life.'

[39.1.2] Wording Of Charge 

'[Name of Defendant] at [Place] on [Date] did rape [name of the complainant].'

[39.1.3] Elements 

A. Defendant 

B. Place 

C. Date 

D. Rape 

E. Complainant

[39.1.4] Rape 

The term 'Rape' is defined in section 136 of the Penal Code (Ch. 26) as follows: 

'Any person who has unlawful sexual intercourse with a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by personating her husband, is guilty of the felony termed rape.' (emphasis added)

[39.1.5] Proof Of Sexual Intercourse 

Section 168 of the Penal Code (Ch. 26) states: 

'Whenever, upon the trial for any offence punishable under this Code, it may be necessary to prove sexual intercourse, it shall not be necessary to prove the completion of the intercourse by the actual emission of seed but the intercourse shall be deemed complete upon proof of penetration only.' (emphasis added) 

In R v Selwyn Sisiolo (Unrep. Criminal Case No. 5 of 1998) Lungole – Awich J stated at pages 3 - 4: 

'Sexual intercourse is, to use the old expression, having carnal knowledge of a woman. In rape it is just penetration of the vagina by penis, however slight the penetration may be. No more than penetration is required to prove sexual intercourse.' 

In R v Peter Taku (Unrep. Criminal Case No. 3 of 1995) Palmer J stated at page 13: 

'[I]t is not a requirement of law that emission of seed be proven as a separate element by prosecution in order to show that sexual intercourse had taken place […]. It is sufficient if penetration is proven by prosecution.' 

In Randall (1991) 53 ACrimR 380 Cox J of the South Australian Court of Criminal Appeal commented at page 382: 

'[I]t would appear that, at least for the last 150 years, the common law, for obvious practical reasons, has made no attempt to distinguish for [the purpose of proving "sexual intercourse" …] between penetration of the vulva, as denoted by the labia majora, or other lips, and penetration of the vagina itself. What little explicit authority on the point may be found in the books supports the wider notion of sexual intercourse. In Lines (1844) 1 Car & K 393; 174 ER 861, Parke B was trying a man for carnal knowledge of a female child under 10. There was evidence that the hymen of the child was not ruptured and counsel for the prisoner submitted that all the physical appearances were consistent with a failure to penetrate the vagina so that his client could not be convicted of the completed offence. The learned judge's ruling was: 

"I shall leave it to the jury to say, whether, at any time, any part of the virile member of the prisoner was within the labia of the pudendum of the prosecutrix; for it ever it was (no matter how little), that will be sufficient to constitute a penetration, and the jury ought to convict the prisoner of the complete offence." 

Lines has always been cited in textbooks and judgements dealing with the physical requirements of rape without, so far I am aware, ever attracting adverse comment […].' 

See also: M v R (1994) 69 ALJR 83; (1994) 76 ACrimR 213, per McHugh J of the High Court of Australia at pages 109 & 250 respectively & R v Mayberry [1973] QdR 211, per Hanger CJ at page 229. 

The law relating to 'Opinion Evidence - Experts' is examined commencing on page 202. 

Section 14 of the Penal Code (Ch. 26) states (in part): 

'A male person under the age of twelve years is presumed to be incapable of having sexual intercourse.' (emphasis added) 

See: Sexual Offences Act 1956 (UK), section 44.

[39.1.6] Consent

[A] Introduction 

A statement obtained from a prosecutrix / complainant should explain as comprehensively as possible how she indicated to the defendant that she was not consenting to sexual intercourse. Therefore, such statements should indicate what the prosecutrix / complainant: 

·                     said in the 'first person'; and 

·                     did in terms of her actions. 

The following is a summary of the principles examined in this subsection: 

·                     The question of consent is an essential issue of fact, see R v Donovan [1934] 2 KB 498; (1934) 25 CrAppR 1; R v Linekar [1995] 3 AllER 69; [1995] 2 CrAppR 49; [1995] QB 250; [1995] 2 WLR 237; Birch v The State [1979] PNGLR 75 at page 87; & R v Karibe – Puni [1967 – 68] P&NGLR 388; 

·                     Mere submission does not necessarily involve consent, see R v Day (1841) 9 C&P 722; 173 ER 1026; 

·                     Consent obtained by force, intimidation or false representation as to the nature of the act of sexual intercourse is no consent, see R v Selwyn Sisiolo (Unrep. Criminal Case No. 5 of 1998; Lungole – Awich J; at page 3); The State v Andrew Tovue [1981] PNGLR 8 & R v Kake [1960] NZLR 595; 

·                     The age, social experience and/or mental state of the prosecutrix may be a consideration in determining whether consent was given, see R v Howard [1966] 1 WLR 13; (1966) 50 CrAppR 56; [1966] 3 AllER 684; R v Lang (1976) 62 CrAppR 50 at page 52 & R v Karibe – Puni [1967 – 68] P&NGLR 388; 

·                     The prosecution must prove 'beyond reasonable doubt' that the complainant / prosecutrix did not consent, see R v Karibe – Puni [1967 – 68] P&NGLR 388; 

·                     A complainant / prosecutrix does not have to give in evidence the words, 'I did not consent', see The State v John Lauriston Birch [1978] PNGLR 79 & Bernard Touramasong & others v The State [1978] PNGLR 337; 

·                     The question of whether a complainant / prosecutrix did consent can be determined by an examination of the circumstances, see The State v John Lauriston Birch [1978] PNGLR 79; The State v Sugueri Sipi [1987] PNGLR 357 & R v I A Shaw [1996] 1 QdR 641; (1995) 78 ACrimR 150; 

·                     Consent can be revoked at the discretion of the complainant / prosecutrix, see R v Molanisau (Unrep. Criminal Case No. 21 of 1980; Ward CJ; at page 2); R v Salman (1924) 18 CrAppR 50 & The State v Charles [1990] PNGLR 63; 

·                     Whether consent is given grudgingly, tearfully, hesitantly or reluctantly is immaterial, see The State v Michael Rave, James Maien & Phillip Baule [1993] PNGLR 85 & The State v Stuart Hamilton Merriam [1994] PNGLR 104; and 

·                     Complainants / Prosecutrixs do not consent simply because they are incapable of deciding due to stupefaction or intoxication, see R v Lang (1976) 62 CrAppR 50 & R v Francis [1993] 2 QdR 300.

In R v Donovan (1934) 25 CrAppR 1 Lord Hewart CJ, delivering the judgment of the Court, stated at pages 7 – 8: 

'[C]onsent, being a state of mind, is to be proved or negatived only after a full and careful review of the behaviour of the person who is alleged to have consented. Unless a jury is satisfied beyond reasonable doubt that the conduct of the person has been such that, viewed as a whole, it shews that she did not consent, the prisoner is entitled to be acquitted.' 

In R v Day (1841) 9 C&P 722; 173 ER 1026 Coleridge J stated at pages 724 & 1027 respectively: 

'There is a difference between consent and submission; every consent involves a submission; but it by no means follows, that a mere submission involves consent.' 

In R v Selwyn Sisiolo (Unrep. Criminal Case No. 5 of 1998) Lungole – Awich J stated at page 3: 

'Rape in Solomon Islands is still the act of male having sexual intercourse with a woman or girl, without her consent. Consent obtained by force, intimidation or false representation as to the nature of the act of sexual intercourse are no consent.' 

'Lack of consent must be proved by the prosecution and this is always more difficult where consent has been given and then withdrawn during the sexual acts', see R v Molanisau (Unrep. Criminal Case No. 21 of 1980; Ward CJ; at page 2). (emphasis added) 

In R v Leonard Laule (Unrep. Criminal Case No. 29 of 1976) Davis CJ stated at page 4: 

'By having intercourse with the complainant while she was asleep the accused falls into the category of a man who has sexual intercourse with a woman with indifference as to whether or not she consented. 

As stated by Lord Hailsham in the case of DPP v Morgan [[1975] 2 AllER 347] at page 357f, "if the intention of the accused is to have intercourse nolens volens, that is recklessly and not caring whether the victim be a consenting party or not, that is equivalent on ordinary principles to an intent to do the prohibited act without the consent of the victim."' 

In R v Salman (1924) 18 CrAppR 50 Lord Hewart CJ, delivering the judgment of the Court, held at pages 51 - 52: 

'There was only one issue in this case: consent and no consent. […] 

It may well be that a woman in the earlier stages will resist a man's attempts to have connection with her; but if she changes her mind and subsequently permits that which she had hitherto resisted, the consent so given being a real consent, the prisoner is not taken to be convicted of rape.' 

In R v Linekar [1995] 3 AllER 69; [1995] 2 CrAppR 49 Morland J, delivering the judgment of the Court of Appeal, stated at pages 73 and 53 respectively: 

'An essential element of the offence of rape is the proof that the woman did not consent to the actual act of sexual intercourse with the particular man who penetrated her. If the Crown prove that she did not consent to sexual intercourse, rape is proved. That ingredient is proved in the so – called "medical cases". The victim did not agree in those cases to sexual intercourse. In R v Flattery (1877) 2 QBD 410 she agreed to a surgical procedure which she hoped would cure her fits. In R v Williams [1923] 1 KB 340 she agreed to a physical manipulation which would provide her with extra air supply to improve her singing. 

In our judgment, it is the non – consent to sexual intercourse rather than the fraud of the doctor or choirmaster that makes the offence rape. Similarly, that ingredient is not proved in the husband impersonation cases because the victim did not consent to sexual intercourse with the particular man who penetrated her.' 

In R v Lang (1976) 62 CrAppR 50 Scarman LJ, delivering the judgment of the Court, held at page 52: 

'We have no doubt that there is no special rule applicable to drink and rape. If the issue be, as here, did the woman consent? the critical question is not how she came to the take the drink, but whether she understood her situation and was capable of making up her mind.' 

In R v Francis [1993] 2 QdR 300 Davies & Demack JJA of the Court of Appeal, in a joint judgment, with whom Macrossan CJ concurred, held at page 305: 

'It is not correct as a matter of law that it is rape to have carnal knowledge of a woman who is drunk who does not resist because her submission is due to the fact that she is drunk. The reason why it is not is that at least includes the case where the carnal knowledge is consensual notwithstanding that the consent is induced by excessive consumption of alcohol. 

The critical question in this case was whether the complainant had, by reason of sleep or a drunken stupor, been rendered incapable of deciding whether to consent or not.' (emphasis added) 

In Bernard Touramsong & others v The State [1978] PNGLR 337 the Supreme Court stated at page 341: 

'The prosecutrix was not a virgin and was mature, so presumably would have been capable of receiving the male organ without any difficulty under normal conditions. Of course, conditions were not normal if it was rape. However, assuming it was, it certainly was not one other those hideously wild affairs that we have all heard of, where so often, serious physical injury is caused. And we have no doubt that sensible women, seeing their inevitable fate, give in, and relax at the critical moment, thus reducing the risk of injury. That is not to say that they consent. We have all tried cases of rape and carnal knowledge where serious physical and nervous damage resulted. But we have also tried cases where the undoubted victims emerged unscathed, sometimes even when sexually very immature. 

Applying that passage to the present case, there is no doubt that in the circumstances of this case the prosecutrix has been a sensible woman and as she stated in her evidence, she did not want to risk her life by screaming, or running away and therefore at the end of the whole episode, she gave in to the accused and ended up with no physical injuries both to her person as well as her private parts. That is not to say that she consented.' (emphasis added) 

In The State v Charles [1990] PNGLR 63 Doherty AJ, sitting alone, held at page 65: 

'I consider that consent can be given in such a way that it is dependent on certain conditions and that consent can be revoked if those conditions are not fulfilled. One such example is that the woman not be exposed to danger […].' 

See also: R v Simon Mani (Unrep. Criminal Case No. 49 of 1993; Palmer J).

[B] Mistake Of Fact 

Section 10 of the Penal Code (Ch. 26) states: 

'A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist. 

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.' (emphasis added) 

In R v I A Shaw [1996] 1 QdR 641; (1995) 78 ACrimR 150 Davies & McPherson JJA of the Court of Appeal, in a joint judgment, held at pages 646 & 155 respectively: 

'Under section 347 consent refers to a subjective state of mind on the part of the complainant at the time when penetration takes place. It is not in law necessary that the complainant should manifest her dissent, or strictly even that she should say in evidence at that trial that she did not consent to sexual intercourse. Whether or not oral evidence to that effect is needed to prove a charge of rape depends very much on the circumstances. 

An obvious case where it is not often given is that of a young or infant girl, or of a woman who is mentally incapacitated, and so is unable to appreciate the nature or significance of the act or later to give evidence about her state of mind at the time. A more mature and intellectually aware complainant would, on the other hand, ordinarily be expected to testify that she did not consent to the act of sexual intercourse that is charged. Whether or not her evidence to that effect is accepted depends on the impression formed by the jury of her credibility considered in the light primarily of the circumstances at the time of the act complained of as disclosed by all the evidence at trial.

A complainant who at or before the time of sexual penetration fails by word or action to manifest her dissent is not in law thereby taken to have consented to it. Failing to do so, may, however, depending on the circumstances, have the consequence that at the trial a jury may decide not to accept her evidence that she did not consent; or it may furnish some ground for a reasonable belief on the part of the accused that the complainant was in fact consenting to sexual intercourse, and so provide a basis for exemption from criminal responsibility under section 24 of the Criminal Code [, which is equivalent to section 10 of the Penal Code (Ch. 26)].' (emphasis added) [words in brackets added] 

In R v Selwyn Sisiolo (Unrep. Criminal Case No. 5 of 1998) Lungole – Awich J stated at pages 7 – 9: 

'On the evidence as a whole I accept the complainant's version, even without corroboration, that she consented to having sexual intercourse because of the beneficial purpose accused said it was intended to lead to, namely, using it in custom way to get the complainant's boyfriend to marry her. 

[…] 

In my view, accused did not at any moment mistake part of the actus, the sexual intercourse, for anything else, not even the effect of the sexual intercourse, as enabling people to marry. If he is believed, he used the sexual intercourse as a means of obtaining body fluid. It was the power of the body fluid mixed with blood and scraping from finger nail and eaten that he may have mistaken, if we assume that his "custom medicine" does not work. The sexual intercourse was a method of obtaining the fluid, but an unlawful method. Accused would have to use lawful means, to obtain the fluid, possibly by asking the complainant to secure the body fluid herself. There was no mistake in the mind of the accused, let alone honest mistake, about the act of sexual intercourse. The defence under s.10 of the Penal Code fails. 

Accused's custom means may be described as witchcraft. It would not be consistent with justice to excuse unlawful acts committed in pursuance of the power of witchcraft because the perpetrator believes in it. That would be repugnant to justice as provided by schedule 3 to the Constitution made under s. 76. Whatever belief there may be in witchcraft or "custom medicine", it must not include the carrying out of actions which are unlawful under the Penal Code or any other enactment.' 

See also: William Tebounapa v R (Unrep. Criminal Appeal Case No. 2 of 1999; Court of Appeal); Director of Public Prosecutions v Morgan [1976] AC 182; [1975] 2 AllER 347; [1975] 2 WLR 913; (1975) 61 CrAppR 136; [1975] CrimLR 717; The State v John Kalabus & Aita Sanangkepe [1977] PNGLR 87 at page 96 & Attorney – General's Reference No. 1 of 1977 [1979] WAR 45. 

The law relating to the defence of 'Mistake Of Fact' is examined commencing on page 439.

[39.2] Attempted Rape

[39.2.1] Offence 

Section 138 of the Penal Code (Ch. 26) states: 

'Any person who attempts to commit rape is guilty of a felony, and shall be liable to imprisonment for seven years.

[39.2.2] Wording Of Charge 

'[Name of Defendant] at [Place] on [Date] did attempt to rape [name of the complainant].'

[39.2.3] Elements 

A. Defendant 

B. Place 

C. Date 

D. Attempt 

E. Rape 

F. Complainant 

[39.2.4] Attempt To Rape 

The law relating to: 

·                     'Attempts To Commit Offences' is examined commencing on page 398; and 

·                     'Rape' is examined commencing on page 630. 

Intention, which is a state of mind, can never be proven as a fact, it can only be inferred from other facts which are proved, see Sinnasamy Selvanayagam v R [1951] AC 83 at page 87, if there are no admissions. 

If there are no admissions, to be found guilty of this offence, 'the only rational inference open to the Court to find in the light of the evidence' must be that the defendant intended to rape the complainant, see R v Dudley Pongi (Unrep. Criminal Case No. 40 of 1999; Muria CJ; at page 22). 

The law relating to 'Circumstantial Evidence' is examined commencing on page 183. 

Intentional or unintentional intoxication may be considered for the purpose of determining whether the defendant had the necessary 'intent' at the time of the commission of the offence, see section 13(4) of the Penal Code (Ch. 26). 

The defence of 'Intoxication' is examined commencing on page 444.

[39.3] Dates Of Offences 

The element regarding the 'Dates Of Offences Of A Sexual Nature' is examined on page 668. The law relating to 'Dates Of Offences Generally' is examined commencing on page 85.

[39.4] Corroboration 

In James v R (1971) 55 CrAppR 299 Viscount Dilhorne, delivering the judgment of the Privy Council, held at page 302: 

'Where the charge is rape, the corroborative evidence must confirm in some material particular that intercourse has taken place and that it has taken place without the woman's consent, and also that the accused was the man who committed the crime. In sexual cases, in view of the possibility of error in identification by the complainant, corroborative evidence confirming in a material particular her evidence that the accused was the guilty man is just as important as such evidence confirming that intercourse took place without her consent.' (emphasis added) 

The law relating to the need for 'Corroboration' in respect of 'offences of sexual nature generally' is examined commencing on page 668.

[39.5] Young Complainants 

The 'age' of the complainant is not an element of this offence. The law relating to the evidence of 'Young Complainants Generally' is however examined commencing on page 699.

[39.6] Husbands 

In R v Iro Gwagwango & Casper Taedola (Unrep. Criminal Case No. 21 of 1991) Muria J stated at page 5: 

'It is suffice however to state that the present law in Solomon Islands, in my view, is that a man could not be guilty of rape upon his wife, this exception being depended on the wife's implied consent given to intercourse with her husband until that consent is revoked by a decree nisi, a separation order or in certain circumstances by a separation agreement. See R v Clarke (1949) 33 CrAppR 216, R v Miller (1954) 38 CrAppR 1 and R v O'Brien [1974] 3 AllER 663. But a husband may be an aider and abettor. See Archbold, 44th Ed. 1992, Vol 2 para 20 – 24 page 2221.' (emphasis added) 

See also: R v Kowaleki (1988) 86 CrAppR 339 at page 341. 

The law relating to 'Parties To Offences' is examined commencing on page 406. 

A husband may also be convicted of 'Indecent Assault'. That offence is examined commencing on page 641.

[39.7] Jurisdiction 

The jurisdiction of the Courts in respect of the offences of 'Rape' and 'Attempted Rape' is examined commencing on page 14. 

The law relating to 'Sentencing' in respect of those offences is examined commencing on page 918.

[39.8] Related Offences 

Refer to 'Offences Against Morality' as provided for in Part XVI of the Penal Code (Ch. 26) from section 136 to 168.

The offences of: 

·                     'Indecent Assault', section 141(1) of the Penal Code (Ch. 26) is examined commencing on page 642; 

·                     'Defilement', sections 142 & 143 of the Penal Code (Ch. 26) is examined commencing on page 647; 

·                     'Incest By Males', section 163 of the Penal Code (Ch. 26) is examined commencing on page 656; and 

·                     'Incest By Females', section 164 of the Penal Code (Ch. 26) is examined commencing on page 662.