Watt, Re Lord Advocate's Reference [2002] ScotHC 35 (22 March 2002)

Watt, Re Lord Advocate's Reference [2002] ScotHC 35 (22 March 2002)

The general rule is that the actus reus of rape is constituted by a man having sexual intercourse with a woman without her consent; for females under 12 or otherwise incapable of giving consent, absence of consent is presumed; mens rea is present where the man knows the woman is not consenting or is subjectively reckless as to her consent. The requirement of force or threat of force is not a necessary element of the crime of rape under Scots law. The decision in Sweenie (1858) is overruled.

Citation
[2002] ScotHC 35
Parties
Appellant: Her Majesty's Advocate; Respondent: Edward Richard Watt
Jurisdiction
Scotland
Judgment Date
22 March 2002
Procedural Posture
Lord Advocate's Reference Under Section 123 of the Criminal Procedure (scotland) Act 1995 / Reference to High Court Following Acquittal at Trial on a Charge of Rape
Outcome
Reference answered; Sweenie (1858) overruled; law of rape restated as per the opinion of the court.
Legal Topics
Rape, Sexual Offences, Consent, Mens Rea, Judicial Precedent, Common Law Development
Criminal Law Rape Sexual Offences Consent Mens Rea Judicial Precedent Common Law Development

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 15 Party arguments 2
Sign in to unlock

Parties

Her Majesty's Advocate

Appellant

Edward Richard Watt

Respondent

Procedural Posture

Lord Advocate's Reference Under Section 123 of the Criminal Procedure (scotland) Act 1995 / Reference to High Court Following Acquittal at Trial on a Charge of Rape

Legal Issues

  1. 1 Whether the common law crime of rape in Scotland requires proof of force or threat of force in addition to lack of consent
  2. 2 Whether the decision in Sweenie (1858) correctly states the law of rape
  3. 3 What constitutes the actus reus and mens rea of rape under Scots law

Ratio Decidendi

The general rule is that the actus reus of rape is constituted by a man having sexual intercourse with a woman without her consent; for females under 12 or otherwise incapable of giving consent, absence of consent is presumed; mens rea is present where the man knows the woman is not consenting or is subjectively reckless as to her consent. The requirement of force or threat of force is not a necessary element of the crime of rape under Scots law. The decision in Sweenie (1858) is overruled.

Court Disposition

Reference answered; Sweenie (1858) overruled; law of rape restated as per the opinion of the court.

Orders

  • The actus reus of rape is sexual intercourse without the woman's consent.
  • For females under 12 or incapable of consent, absence of consent is presumed.