1. — (1) In this Act—

“ aggravated sexual assault ” has the meaning assigned to it by section 3 ;

“ rape under section 4 ” has the meaning assigned to it by section 4 ;

“ the Principal Act ” means the Criminal Law (Rape) Act, 1981;

“ sexual assault ” has the meaning assigned to it by section 2 .

(2) (a) In this Act and in the Principal Act a reference to a section is a reference to a section of the Act in which the reference occurs unless it is indicated that reference to some other enactment is intended.

(b) In this Act and in the Principal Act a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended.

(c) In this Act and in the Principal Act a reference to any enactment shall be construed as a reference to that enactment as amended or adapted by or under any subsequent enactment.

2. — (1) The offence of indecent assault upon any male person and the offence of indecent assault upon any female person shall be known as sexual assault.

F1[(2) (a) A person guilty of sexual assault shall be liable on conviction on indictment

(i) in case the person on whom the assault was committed was a child, to imprisonment for a term not exceeding 14 years, and

(ii) in any other case, to imprisonment for a term not exceeding 10 years.

(b) In this subsection child means a person under 17 years of age.]

(3) Sexual assault shall be a felony.

3. — (1) In this Act “ aggravated sexual assault ” means a sexual assault that involves serious violence or the threat of serious violence or is such as to cause injury, humiliation or degradation of a grave nature to the person assaulted.

(2) A person guilty of aggravated sexual assault shall be liable on conviction on indictment to imprisonment for life.

(3) Aggravated sexual assault shall be a felony.

4. — (1) In this Act “rape under section 4 ” means a sexual assault that includes—

(a) penetration (however slight) of the anus or mouth by the penis, or

(b) penetration (however slight) of the vagina by any object held or manipulated by another person.

(2) A person guilty of rape under section 4 shall be liable on conviction on indictment to imprisonment for life.

(3) Rape under section 4 shall be a felony.

5. — (1) Any rule of law by virtue of which a husband cannot be guilty of the rape of his wife is hereby abolished.

(2) Criminal proceedings against a man in respect of the rape by him of his wife shall not be instituted except by or with the consent of the Director of Public Prosecutions.

6. — Any rule of law by virtue of which a male person is treated by reason of his age as being physically incapable of committing an offence of a sexual nature is hereby abolished.

7. — (1) Subject to any enactment relating to the corroboration of evidence in criminal proceedings, where at the trial on indictment of a person charged with an offence of a sexual nature evidence is given by the person in relation to whom the offence is alleged to have been committed and, by reason only of the nature of the charge, there would, but for this section, be a requirement that the jury be given a warning about the danger of convicting the person on the uncorroborated evidence of that other person, it shall be for the judge to decide in his discretion, having regard to all the evidence given, whether the jury should be given the warning; and accordingly any rule of law or practice by virtue of which there is such a requirement as aforesaid is hereby abolished.

(2) If a judge decides, in his discretion, to give such a warning as aforesaid, it shall not be necessary to use any particular form of words to do so.

8. — (1) A person indicted for rape may, if the evidence does not warrant a conviction for rape but warrants a conviction for rape under section 4 or aggravated sexual assault or sexual assault, be found guilty of rape under section 4 or of aggravated sexual assault or of sexual assault, as may be appropriate.

(2) A person indicted for rape may, if the evidence does not warrant a conviction for rape but warrants a conviction for an offence under F2[ section 2, 3 or 3A of the Criminal Law (Sexual Offences) Act 2006], or under section 3 of the Criminal Law Amendment Act, 1885, be found guilty of an offence under F1[the said section 3 or section 2, 3 or 3A of the Criminal Law (Sexual Offences) Act 2006] as may be appropriate.

(3) A person indicted for rape under section 4 may, if the evidence does not warrant a conviction for rape under section 4 but warrants a conviction for aggravated sexual assault or for sexual assault, be found guilty of aggravated sexual assault or of sexual assault, as may be appropriate.

(4) A person indicted for aggravated sexual assault may, if the evidence does not warrant a conviction for aggravated sexual assault but warrants a conviction for sexual assault, be found guilty of sexual assault.

(5) A person indicted for an offence made felony by F2[section 2 of the Criminal Law (Sexual Offences) Act 2006], may, if the evidence does not warrant a conviction for the felony or an attempt to commit the felony but warrants a conviction for an offence under F2[section 3 or 3A of the Criminal Law (Sexual Offences) Act 2006], or section 3 of the Criminal Law Amendment Act, 1885, or rape under section 4 or aggravated sexual assault or sexual assault, be found guilty of an offence under F2[the said section 3 or section 3 or 3A of the Criminal Law (Sexual Offences) Act 2006] or of rape under section 4 or of aggravated sexual assault or of sexual assault, as may be appropriate.

F3[9.—(1) A person consents to a sexual act if he or she freely and voluntarily agrees to engage in that act.

(2) A person does not consent to a sexual act if—

(a) he or she permits the act to take place or submits to it because of the application of force to him or her or to some other person, or because of the threat of the application of force to him or her or to some other person, or because of a well-founded fear that force may be applied to him or her or to some other person,

(b) he or she is asleep or unconscious,

(c) he or she is incapable of consenting because of the effect of alcohol or some other drug,

(d) he or she is suffering from a physical disability which prevents him or her from communicating whether he or she agrees to the act,

(e) he or she is mistaken as to the nature and purpose of the act,

(f) he or she is mistaken as to the identity of any other person involved in the act,

(g) he or she is being unlawfully detained at the time at which the act takes place,

(h) the only expression or indication of consent or agreement to the act comes from somebody other than the person himself or herself.

(3) This section does not limit the circumstances in which it may be established that a person did not consent to a sexual act.

(4) Consent to a sexual act may be withdrawn at any time before the act begins, or in the case of a continuing act, while the act is taking place.

(5) Any failure or omission on the part of a person to offer resistance to an act does not of itself constitute consent to that act.

(6) In this section "sexual act" means

(a) an act consisting of—

(i) sexual intercourse, or

(ii) buggery,

(b) an act described in section 3(1) or 4(1) of this Act, or

(c) an act which if done without consent would constitute a sexual assault;

"sexual intercourse" shall be construed in accordance with section 1(2) of the Principal Act.]

10. — A person indicted for a rape offence or the offence of aggravated sexual assault or attempted aggravated sexual assault or of aiding, abetting, counselling or procuring the offence of aggravated sexual assault or attempted aggravated sexual assault or of incitement to the offence of aggravated sexual assault or conspiracy to commit any of the foregoing offences shall be tried by the Central Criminal Court.

11. — The following section shall be substituted for section 6 of the Principal Act:

12. — Section 1 of the Principal Act is hereby amended by the substitution of the following subsection for subsection (1):

13. — Section 3 of the Principal Act is hereby amended by the substitution of the following subsection for subsection (1):

14. — Section 8 of the Principal Act is hereby amended—

(a) by the substitution of the following subsection for subsection (2):

and

(b) by the insertion of the following subsection after subsection (7):

15. — Section 9 (2) of the Principal Act is hereby amended by the insertion after paragraph (a) of the following paragraph:

16. — Section 12 (1) of the Principal Act is hereby amended by—

(a) the substitution of “a sexual assault or an offence to which section 11 relates” for “an offence to which section 10 or 11 relates”, and

(b) the substitution of “ £1,000” for “ £500”.

17. — (1) Sections 4 (1), 5 and 9 (1) of the Principal Act are hereby amended by the substitution of “sexual assault offence” for “rape offence”.

(2) Section 7 of the Principal Act is hereby amended by—

(a) the substitution of “person” for “woman” in subsection (1), and

(b) the substitution of “the outcome of” for “an acquittal of the accused person at” in subsection (4), and

(c) the substitution of “sexual assault offence” for “rape offence” in subsections (1), (2), (3), (4), (5), (8) (a) and (10).

18. — Section 18 of the Criminal Law Amendment Act, 1935, is hereby amended by the substitution of “ £500” for “two pounds” and “6 months or to both” for “one month”.

19. — The Defence Act, 1954, is hereby amended by—

(a) the insertion in F4[section 169 (3) (b)], after “rape”, of “, rape under section 4 (within the meaning of the Criminal Law (Rape) (Amendment) Act, 1990) or aggravated sexual assault (within the meaning of the Criminal Law (Rape) (Amendment) Act, 1990)”, and

(b) the substitution in section 192 (3) of “, rape, rape under section 4 (within the meaning of the Criminal Law (Rape) (Amendment) Act, 1990) or aggravated sexual assault (within the meaning of the Criminal Law (Rape) (Amendment) Act, 1990)” for “or rape”.

20. — (a) Paragraph (a) of subsection (2) of section 13 of the Criminal Procedure Act, 1967, shall not apply in relation to rape, rape under section 4 (within the meaning of the Criminal Law (Rape) (Amendment) Act, 1990) or aggravated sexual assault (within the meaning of the Criminal Law (Rape) (Amendment) Act, 1990).

(b) Notwithstanding paragraph (a), the offences referred to therein shall be deemed, for the purposes of paragraph (b) of the said subsection (2), to be offences to which the said section 13 applies.

21. — The enactments specified in column (3) of the Schedule to this Act are hereby repealed to the extent specified in column (4) of that Schedule.

22. — (1) This Act may be cited as the Criminal Law (Rape) (Amendment) Act, 1990.

(2) The Criminal Law (Rape) Act, 1981, and this Act may be cited together as the Criminal Law (Rape) Acts, 1981 and 1990, and shall be construed together as one.

(3) This Act shall come into operation one month after the date of its passing.

(4) (a) Sections 2, 3, 4, 5, 6, 8, 12, 16, 19 and 21 (insofar as it relates to reference numbers 3 and 4 in the Schedule to this Act) shall not have effect in relation to an offence committed before the commencement of this Act.

(b) Sections 7, 11, 13, 15 and 17 (1) shall not have effect in relation to a trial or preliminary examination that begins before such commencement.

(c) (i) Subject to subparagraph (ii), section 10 shall not have effect in relation to a case in which, before such commencement, a person has been sent forward for trial to the Circuit Court.

(ii) In a case to which subparagraph (i) applies, an application by a person charged or the Director of Public Prosecutions, made before the commencement of the trial concerned, to a judge of the Circuit Court sitting in the circuit where it is to take place for its transfer to the Central Criminal Court shall be granted.

(d) Section 20 shall not have effect in relation to a charge that is made before such commencement.