Criminal Law (Xirnium)

The Crime of Rape

The following is intended merely as a summary of some of the many legal issues surrounding rape law in Xirnium, and is neither exhaustive nor complete.

The Common Law

Rape is considered a serious crime in the Eternal Republic, the maximum penalty for which is life imprisonment. The physical acts covered by the offence rape are non gendered.

The physical and fault elements, respectively, of this offence are:

(a) that the defendant sexually penetrated, to any degree whatsoever, a person without his or her consent or that the defendant did not immediately cease sexual penetration of a person not consenting

(b) that the defendant had the mere intention to sexually penetrate, to any degree whatsoever, a person or to not immediately cease sexual penetration of a person not consenting

Unusual for a criminal offence in common law jurisdictions, the fault element for rape in Xirnium is that of strict liability. The prosecution is not required to prove that the defendant either had knowledge of the victim’s lack of consent or was reckless as to whether or not the victim was consenting; these are assumed upon mere satisfaction of the physical element of the crime.

The Standard of Consent

The common law defines consent as needing to be freely and voluntarily given by a person with the cognitive capacity to give consent.

Defences to the Charge of Rape

As already noted, the prosecution is not required to prove that the defendant had knowledge of the victim’s lack of consent or that he was reckless as to whether or not the victim was consenting. The accused may, however, seek to raise the defence of an honest and reasonable yet mistaken belief in free and voluntary consent. The defendant must demonstrate that the mistaken belief in consent was genuinely held at the time, and that the accused was neither aware of the victim’s lack of consent nor was reckless as to whether the victim was consenting. If so demonstrated, the accused’s subjective state of mind is then tested against a harsh objective standard, to see whether it was reasonable in all the circumstance. It is well established in Xirniumite courts that there must be evidence from sources other than the accused to give the defence of mistaken belief in consent an air of reality.

The possibility of this defence is unavailable in circumstances where the accused did not take reasonable steps to ascertain that the complainant was consenting or where the accused did not turn his mind to the possibility that the complainant was not consenting (recklessness and wilful blindness). It is also unavailable where the accused’s mistake results from intoxication.

A jury will only be allowed to consider whether the accussed had an honest and reasonable but mistaken belief in free and voluntary consent if a trial judge is first satisfied of the sufficiency of evidence produced by the defence supporting the possibility of such a claim, and in cases where none of the circumstances making the defence unavailable are present. Of course, where the victim submitted because of force or the fear of force (or harm or the fear of harm of any type) to that person or someone else, or because she was unlawfully detained, the defence of mistaken belief would not be considered by the jury. Likewise, the defence would not be available in cases where the accused knew or ought reasonably to have known that the victim was so intoxicated as to be incapable of freely consenting.

The common law definition of consent as “free and voluntary”, already noted above, has been crafted to render the accused criminally culpable in situations where he engaged in sexual penetration without the victim’s consent believing that “no really means yes” or that “rough handling” is acceptable conduct for overcoming resistance. Such circumstances can be held to violate the reasonableness criterion of the defence of mistaken belief.

Statutory Provisions

Admissible Evidence

The sexual reputation or disposition of the complainant is not admissible in any court process under any circumstances.

Mandatory Jury Directions

If the complainant did not say or do anything to indicate free and voluntary agreement and cooperation, then this shall normally suffice to demonstrate that there was an absence of free and voluntary consent. Such is also enough to reject the claim that the defendant had an honest and reasonable yet mistaken belief in consent.

A person is never to be regarded as having freely agreed to a sexual act just because they did not protest or physically resist, or they did not sustain physical injury, or on that, or any earlier occasion, they freely agreed to engage in another sexual act with that person, or a sexual act with another person. That the person did protest or physically resist, or did sustain physical injury, however, is persuasive evidence that there was a lack of free and voluntary consent.

These lists are incomplete.