May met Alan in a karaoke bar. Both of them drank heavily. Eventually May became drunk, without knowing what Alan really planned to do…

1. How does the court deal with cases of alleged rape where the accused claims the sexual intercourse was consensual?

   Rape occurs where a man has sexual intercourse with a woman who did not consent. The prosecution must prove the accused knew the woman was not consenting or that he was reckless whether or not she consented.

   In this case it appears that Alan accepts that sexual intercourse took place. If there is a dispute about whether sexual intercourse has occurred, medical evidence will be needed.

   The prosecution will call its evidence about events in the karaoke bar, any activity between May and Alan in the karaoke bar, whether they knew each other previously, May’s condition in the karaoke bar and how she came to be in Alan’s home and in his bed.

   The prosecution must prove the absence of consent. To convict Alan of rape, the jury must be satisfied beyond reasonable doubt that Alan knew May did not consent to sexual intercourse or that he was reckless whether or not she consented. May’s condition when she left the karaoke bar will be important. If there is evidence that she was heavily intoxicated at that time, this shows she was not in any condition to consent and that Alan knew this. Was he, for example, continually plying her with alcohol in the karaoke bar?

   Having heard all the evidence, including any evidence about Alan’s reaction when the allegation of rape was first put to him, what was said to the police during their investigation and any evidence he chooses to give at the trial, the jury will give its verdict of guilty or not guilty.

2. If Alan is found guilty of rape and in mitigation to the court he claims that he was drunk that night, would the court accept his mitigation?

   Alan’s alleged drunkenness is not normally regarded as a mitigating factor. Trying to blame what happened upon his consumption of alcohol emphasizes his recklessness about whether May was consenting or not. If he is trying to say that the alcohol he consumed loosened his inhibitions, the court may well view this as an aggravating factor. Alan should say nothing about the circumstances in which the offence was committed upon conviction after trial and deal with what mitigation there is in his personal circumstances.

3. If Alan is found not guilty of rape, but May was only 14 years old when she had sex with Alan, what offence would be charged against Alan?

   Alan would be charged with unlawful sexual intercourse with a girl under the age of 16 contrary to Section 124 of the Crimes Ordinance (Chapter 200).

   The maximum punishment for the offence is 5 years’ imprisonment.

   Having consensual sexual intercourse with a girl under 16 years of age is still an offence, even with the girl’s consent. The law is designed to protect young girls against themselves. Men who have sexual intercourse with young girls do so at their own risk. If sexual intercourse is proved and May was in fact under 16 years’ of age at the time of the sexual intercourse, Alan must be convicted under Section 124 of the Crimes Ordinance (Chapter 200). His only good fortune is that the maximum punishment under Section 124 of the Crimes Ordinance (Chapter 200) is much lower than the maximum punishment for rape (The maximum penalty for rape is life imprisonment).