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When rape is an offence of strict liability

Sunday 22 June 2008 at 8:27 am | In News | Post Comment

R v G [2008] HL
It is a strict liability offence for a boy to have intercourse with a girl under 13. Parliament has said (Sexual Offences Act 2003) that if the girl is under 13 it is rape. It is rape because being under 13 she cannot in law consent to sexual activity; sex with someone who does not consent is rape.

Therefore, when a 15-year-old boy had sex with a 12-year-old girl who told him she was 15, it mattered not that he thought she was over 13; the offence was one of strict liability. His appeal was that strict liability in such circumstances was contrary to the right to a fair trial (Article 6) failed in the House of Lords this week.

The House of Lords ruled by 3:2 that the case had nothing to do with human rights.

Giving the lead speech Lord Hoffmann said that the fairness of national provisions was not a matter for Article 6 and that the case was “another example of the regrettable tendency to try to convert the whole system of justice into questions of human rights”.

Lord Hope and Lord Carswell spoke of balancing the rights of those concerned: the protection of children against sexual assault, and taking account of circumstances where young offenders are prosecuted. The sentence in this case possibly reflects this underlying concern; the judge gave the boy a 12-month conditional discharge, not the life imprisonment that was available.

The view that a defining quality of strict liability offences is that they are often quasi-offences, linked to modest penalties, may need to be qualified.