OVERVIEW
Rape is the most serious sexual offence.
Rape, contrary to section 118 of the Crimes Ordinance (Cap. 200), is the most serious sexual offence and carries a maximum sentence of life imprisonment. It is ordinarily tried before a jury in the High Court.
The offence is committed if a man has intercourse with a woman who does not consent at the time, knowing that she does not consent or being reckless as to whether she consents. Intercourse requires penile penetration of the vagina; the slightest penetration is sufficient and ejaculation is not required.
When the jury considers whether the accused believed that the woman was consenting, the presence or absence of reasonable grounds for that belief is relevant together with all other circumstances. Section 118 also provides that rape is committed if a man induces a married woman to have sexual intercourse with him by impersonating her husband.
STATUTORY PROVISIONS
Section 118 of the Crimes Ordinance (Cap. 200)
The relevant part of the current statutory provision states:
Section 118 — Rape
(1) A man commits rape if—
(a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and
(b) at that time he knows that she does not consent to the intercourse or is reckless as to whether she consents to it.
(2) A man who commits rape shall be liable on conviction on indictment to imprisonment for life.
(3) A man also commits rape if he induces a married woman to have sexual intercourse with him by impersonating her husband.
(4) It is hereby declared that if at a trial for a rape offence the jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed.
ELEMENTS OF THE OFFENCE
What the prosecution must prove.
Sexual Intercourse
The prosecution must prove penile penetration of the vagina. The slightest penetration is sufficient and ejaculation is not required.
Absence of Consent
The woman must not have consented to the intercourse at the time it occurred.
Knowledge or Recklessness
At the time of intercourse, the accused must have known that the woman did not consent or have been reckless as to whether she consented.
Belief in Consent
If the jury considers whether the accused believed the woman was consenting, it must consider the presence or absence of reasonable grounds for that belief together with all other relevant matters.
Maximum Penalty
Rape carries a maximum sentence of life imprisonment.
Rape is punishable on conviction on indictment by a maximum sentence of life imprisonment and is ordinarily tried before a jury in the High Court.
HOW MCS CAN ASSIST
Advice and representation
MCS can assess the charge, the statutory elements and the prosecution evidence; advise on interview, plea, trial and sentence; and identify any defence or evidential issue available on the facts.