1. Is it true that sexual intercourse with a female under the age of 16 would be rape even if she consents to sexual intercourse?
No. A female under the age of 16 may factually consent to sexual intercourse. That consent means that rape is not committed. However, she must have understood the nature of the act for the consent. This consent may amount to a defence to a charge of rape.
Even if there is consent to sexual intercourse, the defendant could be convicted of unlawful sexual intercourse with a girl under 16 years of age contrary to section 124 of the Crimes Ordinance. The offence is punishable with a maximum of 5 years’ imprisonment. If the girl is under 13 years of age, section 123 of the Crimes Ordinanceapplies. The maximum penalty under section 123 is life imprisonment. Both section 123 and section 124 are offences of strict liability. Provided sexual intercourse is proved and, as a fact, the girl was at the time under 13 or 16 as the case may be, the defendant will be convicted irrespective of any belief that the girl in question was older than 13 or 16 as the case may be.
Alternatively if there is consent to sexual intercourse but the female is under 16 years’ of age, there could be a charge of indecent assault contrary to section 122 of the Crimes Ordinance. This offence carries a maximum of 10 years’ imprisonment. The consent of a girl under 16 is no defence to a charge of indecent assault as, in law, she cannot consent. It is however a defence if it can be shown that he honestly and reasonably believed that the girl was 16 or over.
(see section on ‘Indecent Assault’).