Mayers v The Queen

• Jurisdiction: Barbados
• Judge: Williams, J.A.
• Judgment Date: 03 April 2009
• Neutral Citation: BB 2009 CA 9
• Docket Number: Criminal Appeal No. 22 of 2005
• Court: Court of Appeal (Barbados)
• Date: 03 April 2009

Court of Appeal

Williams, J.A.; Connell, J.A.; Moore, J.A.

Criminal Appeal No. 22 of 2005

Mayers

and

The Queen

Appearances:

Dr. W. E. Waldron-Ramsay for the appellant.

Mr. Anthony L. Blackman for the respondent.

Criminal law - Rape — Appeal against sentence — Whether sentence of 8 years' imprisonment was excessive in the circumstances.

I. INTRODUCTION

Williams, J.A.

1 The appellant, Malcolm Othneil Mayers, was on 25 April 2005 convicted of rape committed on 21 October 2000. On 9 June 2005, Chandler, J. sentenced him to eight years imprisonment. This appeal raises the issue of violence as a component of rape and the appropriate sentence in the circumstances of the case.

2 The Sexual Offences Act, Cap. 154 has been in force since 13 February 1992; it revised and reformed the law relating to sexual crime by giving an extended definition to the meaning of rape, to include spousal rape, rape of males and penetration with an object. The appellant was charged with rape, contrary to section 3(1) of the Act which provides:

“Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the intercourse or is reckless as to whether the other person consents to the intercourse is guilty of the offence of rape and is liable on conviction on indictment to imprisonment for life.”

II. THE FACTS

3 The complainant was the employee of the appellant and had recently started to work for him as the shopkeeper of his shop which sold alcohol, drinks and snacks. On the day of the incident the complainant was feeling ill and the appellant closed his shop and offered to take her home in the taxi he operated. However, instead of taking the complainant straight home he made a detour and parked his taxi by the cemetery wall behind Christ Church Parish Church. The complainant protested, but he told her that they could not leave unless she had sex with him. He put his hands on her throat and across her chest. He pulled down her pants and then had sexual intercourse with her.

4 The complainant was 18 years old when she was raped by the appellant, who was 44 years old. She reported the incident to her mother, who informed the police. She made a statement to the police and was taken to the doctor. Forensic examination revealed sperm on the complainant's vagina and on the appellant's trousers.

5 The appellant's defence was that he “did not interfere” with the complainant; the appellant claimed that it was the complainant who encouraged the appellant to park and who initiated the sexual activity with the appellant. There was what the appellant described as mutual touching. However, no sexual intercourse took place and the appellant stated that after a period of time relaxing in the parked car he left and took the complainant home.

6 The jury obviously rejected the appellant's account of the events and returned a unanimous guilty verdict within 40 minutes of deliberation. There is no appeal against the conviction.

III. THE APPEAL

(a) GROUND AND SKELETON ARGUMENT

7 The sole ground of appeal was:

“That in all the circumstances of this case, a sentence of eight (8) years in prison might perhaps be too severe.

That this Honourable Court might wish to impose a shorter sentence, in the circumstances.”

Dr. Waldron-Ramsay applied for leave to appeal which we granted and proceeded to hear the appeal.

8 Or. Waldron-Ramsay in the appellant's skeleton argument stated:

“It is to be conceded that rape is normally a crime of violence – of both mind and body. But the gravity of the violence is not the same in every case. The evidence in this case does not indicate any physical violence really…It is respectfully submitted that this particular rape was not a particularly violent crime.”

9 In his oral submission, his essential point was that this was not a crime that involved physical violence: “there is no element at all of any physical violence used by the appellant”. According to Dr. Waldron-Ramsay, “the crux of the argument for the appellant is that there is no out and out violence”.

10 In response, Mr. Blackman stated that “the offence itself denotes an act of violence”. The respondent relied on the acts of the appellant as evidence of force used against her.

(b) MEANING AND NATURE OF RAPE

11 The above submissions call for a consideration of the meaning and nature of rape. Rape is a statutory offence. The conduct constituting the offence is prescribed in section 3(1) of the Act as set out in paragraph [2] above. The offence of rape is therefore committed by an act of non-consensual sexual intercourse, ignoring for the purpose of this decision the extended meaning of rape in the Act.

12 The standard dictionary definition of rape is: “The crime of forcing somebody to have sex with you, especially using violence.” (Oxford Dictionary)

Rape is defined in most dictionaries as an act using violent or threatening behaviour. Violence constitutes behaviour that is intended to hurt or kill somebody and generally connotes extreme force. Force is violent physical action used to obtain or achieve something.

13 Support for the proposition that rape constitutes a crime of violence is also to be found in international instruments dealing with violence against women to which Barbados has subscribed. Article 2 of the United Nations Declaration on the Elimination of Violence against Women, 1993, which was the text of a General Assembly Resolution adopted by consensus on 20 December 1993 provides that:

“Violence against women shall be understood to encompass, but not be limited to, the following:

• (a) ……

• (b) Physical, sexual and psychological violence occurring within the general community, including rape…

• (c) …”

Article 2 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, 1994, which was ratified by Barbados on 16 May 1995 and entered into force on 15 June 1995 provides that:

“Violence against women shall be understood to include physical, sexual and psychological violence:

• (a) ……

• (b) That occurs in the community and is perpetrated by any person, including among others, rape.

• (c) …”

It follows from the above that rape is defined in terms of constituting violence against women.

14 We have to consider, apart from the statutory and other definitions of rape, the nature and impact of the offence on the victim. There can be no doubt that rape involves the use of force and that generally to use force against another is wrong. Dempsey and Herring in an article entitled, “Why Sexual Penetration Requires Justification” (2007) 27 Oxford Journal of Legal Studies 468 at pages 473 and 474 state:

“The use of physical force on another person is a prima fade wrong…the use of force calls for justification…One reason why penile penetration of the vagina is properly understood to require justification is due to the physiological fact that force is required to achieve such penetration.

Where a man engages in pushing movements to achieve initial penetration or thrusting movements during intercourse, such actions constitute the use of force. It is this use of physical force which we claim is prima fade wrong.”

The authors identify three risks of serious physical harm that attach to rape: first, the risk of sexually transmitted diseases; secondly, the risk of unwanted pregnancy and thirdly, the...