Criminal Law (Xirnium)

The Crime of Rape

The Common Law

Rape is considered a serious crime in the Eternal Republic, the maximum penalty for which is life imprisonment.

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

(a) that the defendant sexually penetrated a person to any degree whatsoever without 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 a person to any extent whatsoever or to not immediately cease sexual penetration of a person not consenting

Extremely unusual for criminal offences 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 had either knowledge of the victim’s lack of consent or was reckless as to whether or not the victim was consenting; these are assumed by 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 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 consent.

The accused’s subjective state of mind is therefore tested against a harsh objective standard.

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.

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, then that is normally enough to demonstrate that there was an absence of free and voluntary consent. It is also enough to reject the claim that the defendant had an honest and reasonable yet mistaken belief in consent.

These lists are incomplete.