(167)  Rape redefined

A Court of Seven Judges over-ruled the precedent of Chas Sweenie (1858) 3 Irv 109 and held that an accused does not have to have used force to overcome the consent of his victim in order to be guilty of rape, in a majority judgment (5-2) issued on 22 March 2002.  Instead, the majority ruled, rape consists in a man having sexual intercourse with a woman without her consent, the mens rea for the offence consisting in knowledge that the woman was not consenting or recklessness as to whether she was consenting.  The case followed a reference by the Lord Advocate.

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