The defendant pleaded not guilty to one charge of attempted rape of an 11 years and 10 months old female, under section 376(1) of the Penal Code. The court found that the complainant gave different versions as to the events that occurred. It found the complainant’s evidence unreliable. The court concluded that the complainant was the initiator of the events that led to the attempted intercourse. The court found that there was an attempt at sexual intercourse. In view of medical evidence that revealed that the hymen was intact and that ejaculation may have occurred outside the complainant, the court found doubt as to whether penetration occurred. The court highlighted that consent was not a defense to rape as the complainant was under the age of 14 at the time at issue. Nonetheless, consent becomes relevant to punishment, as a minimum sentence is prescribed for rape which occurs “without the consent of the victim”. The court found that the complainant gave her consent to the defendant’s attempt to have sexual intercourse with her and that she gave a real consent, not vitiated by immaturity or by any of the other factors specified in section 90 P.C. The court convicted the defendant of attempted rape and imposed sentences of one year imprisonment and three strokes.
Public Prosecutor v. Billy Metussin