Published: Wed, 07 Mar 2018
R v Braham  EWCA Crim 3
RAPE – MENS REA – REASONABLE BELIEF IN CONSENT – RELEVANCE OF MENTAL ILLNESS
The appellant, Braham, had been convicted of the rape and assault of the victim, who was his partner at the time. It was alleged that the appellant aggressively insisted upon having intercourse with the victim, who had submitted as a result. There was medical evidence to suggest that the appellant was suffering from a mental disorder at the time the offences were committed, but that he retained the capacity to distinguish right from wrong. The judge at trial directed the jury, in line with section 1(2) of Sexual Offences Act 2003 that Braham would be guilty of rape if he did not reasonably believe that the victim was consenting, and that they should ignore Braham’s mental illness when assessing this question. Braham appealed on the basis that his mental illness was a factor that could, and should, be put before the jury.
Under the Sexual Offences Act 2003 the mens rea of rape requires that the defendant does not reasonably believe that the victim is consenting, and that this belief is to be assessed according to ‘all the circumstances’. The question arose in this case whether, and in what circumstances, the mental illness of a defendant could be taken into account by the jury when making this assessment.
The Sexual Offences Act 2003 makes it explicit that a genuine belief in consent is not itself enough, that belief must also be reasonable. A delusional or irrational belief, if adopted by a defendant, by definition could not be reasonable. Unless legally insane the beliefs of a defendant must be assessed by objective standards of reasonableness, even where a defendant was suffering from a delusional or psychotic disorder.
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