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Restructuring the Offence of Rape: A Strive to Meet Feminist Concerns

About The Author

Jack Slone (Administrative Law Editor)

Jack is a third-year law student at St. Catherine’s College, Oxford University. He has a keen passion for legal issues which affect the day-to-day lives of people in society, such as criminal law, medical law, and the law of negligence. Outside of law, Jack enjoys a number of sports including cycling, squash and snooker or indulging in his guilty pleasure of American TV programs and box-sets.

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This article is part of the 'Sexual Offences In 2015' series, edited by Keir Baker.

Social, cultural and scientific changes create novel pressures for lawmakers, whether they be judges or legislators. This series on sexual offences intends to examine whether the law is keeping up with change, or failing to accurately reflect the public attitude towards sex.

Other articles from this series are listed at the end of this article.

The offence of rape has become one of the most written about crimes of our time. And that is to be expected. Having sex is one of nature’s true blessings; a commonplace of life to be enjoyed no less than eating or sleeping. Yet it is also an act which contains an extremely fine line, from something of pleasure to something of malevolence when it is transformed into an act much more sinister in nature.

At one end of the spectrum, it could simply be through a mistake or misunderstanding that converts the everyday act into a heinous crime only slightly less serious than murder. However, on the other end of that spectrum, there are all kinds of sexual invasions which the law narrowly accounts for under one undifferentiated heading of rape with a central concept of consent. With the rise of feminism through its third wave, this spectrum is being considered with an unprecedented scrutiny: critical discussion of the offence of rape has becoms ever more frank in line with the resurgence of feminist attitudes in today’s society.

This article will argue that it is time that the law played its part, and recognised that huge spectrum by the creation of a differentiated offence of rape, substantively structured like that of manslaughter. This, in turn, will help greatly with the feminist concerns with the law as it stands currently under the relatively new Sexual Offences Act 2003 (SOA 2003).

The Consequences of a Sexual Attack

After a sexual assault, the brain is often affected in a detrimental way, changing the way our so-called ‘emotional brain’ functions. The limbic system is made up of the hippocampus and amygdala, and controls the emotions and drives that we have to survive. The hippocampus processes our memories, putting them into context in a systematic and rational way.

After a sexual assault, however, the hippocampus ceases to function in its normal way, and so the amygdala steps in; an area at the back of the brain that perceives danger and processes stimuli in a far less contextualised way. It sets in motion a series of hormone releases that lead to the defensive responses of fight, flight or freeze, but since it is immune to the effects of stress hormones it may continue to sound an alarm inappropriately, and as such the amygdala's role in the encoding, storage and retrieval of emotionally-arousing material primes us to remember emotionally charged or threatening events better than everyday events. One can see clearly from this how a sexual attack can literally halt a person’s life, by the constant reliving of the event itself, usually taking the form of repetitive and traumatic flashbacks and nightmares.

In terms of an account in court, the recollection and retelling of the traumatic event may be imperfect and disjointed as the initial traumatic stimuli and any subsequent stimuli received are not subject to the brain’s normal systems of reasoning. Thus, although the event is recounted over and over, a recollection of the event without the amygdala’s alarm and in a fully sequenced manner is rarely possible. This demonstrates the extremely debilitating effects that a victim of a sexual attack or sexual abuse can suffer from, and may not recover from for the rest of their life. It is part of the law’s duty to these victims to create a fair process which sees that the attacker accounts for the damage that they cause, which in turn makes it incredibly important that we get the law on sexual offences right.

What is the Current Law?

Section 1 of the SOA 2003 defines the offence of rape. Traditionally, the offence involves penetration of the vagina of the complainant by the penis of the accused by force and against the will of the complainant.

However, when the law of rape is restructured it usually means abandoning one of the traditional aspects of rape, or at least one of the two major aspects playing a subsidiary role. Either the role of force is relegated to a subsidiary role, with the focus primarily being on the complainant’s will, as is the case in the definition given in the SOA in England and Wales, or the role of the complainant’s will is abandoned, with the focus primarily being on the aspect of force, as can be seen in the jurisdictions of Canada, Michigan and New South Wales. Thus, the SOA primarily focuses on the consent of the victim and relegates force to a subsidiary role, which only features later on in the statute.

It even gives a definition to consent at section 74, stating that a person consents “if he agrees by choice, and has the freedom and capacity to make that choice.”

As such, the idea of consent plays a large role in the definition given to the offence of rape in section 1of the Act. It states:-

A person (A) commits an offence if –

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

Section 1(3) of the SOA states that for all offences in the Act (including the one above) evidential and conclusive presumptions are to be applied when appropriate. Section 74 states that, when doing the relevant act, it is proved that any of the exhaustive list of circumstances specified were present, and that the defendant knew that these circumstances existed, the victim is to be taken not to have consented to the relevant act unless sufficient evidence is provided, and the defendant is to be taken not to have reasonably believed that the victim consented unless sufficient evidence is provided.

There are also conclusive presumptions set out in within section 76, which allows there to be an automatic presumption that the complainant did not consent and that the defendant did not believe that the complainant consented, providing one of two circumstances are met:–

(a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;

(b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.

The first provision would most likely apply in the case of R v Williams [1923], had the case not been decided before the SOA came to be enacted. The case saw a 16-year-old girl being deceived into having sexual intercourse with her choirmaster under the false pretence that it would improve her singing. Her seemingly consensual agreement to the act was vitiated and the defendant was found guilty of rape. An example of a case which did come under the first provision was the case of R v Devonald [2008], where a father masqueraded as a teenage girl online to encourage his daughter’s ex-boyfriend to perform sexual acts over webcam to him, in an attempt of humiliation. The deception as to the nature and purpose of the act lead to the father being convicted, but this provision is not invoked as often as one may think, as shown in the case of R v Linekar (Gareth) [1995], where it was held that the defendant’s failure to pay a prostitute for sex was not a level of deception held to be sufficient to vitiate consent.

This was explored further by the High Court in the case of R v Jheeta [2007] which stated:

In our judgment the ambit of section 76 is limited to the “act” to which it is said to apply. In rape cases the “act” is vaginal, anal or oral intercourse.

As such, it seems that the invocation of this provision will be rare, as confirmed by the recent case of R v Bingham [2013] 2 Cr App R 29, where Hallet LJ confirmed that even where it is invoked, it will be strictly interpreted.

In short, the SOA provides us with a positive definition of consent, alongside evidential presumptions intended to structure argument in court around consent, all of which were designed to meet the concern that the notion of consent can be manipulated heavily during trials.  However, commentators such as Victor Tadros suggest that the definition given is vague in its scope and ambiguous in its terms, and that, although the evidential presumptions go some way to assisting with this, they merely tell us what consent is not; not what consent is, and further add to the problems regarding the definition of rape since they treat as merely evidential circumstances which, if properly differentiated, would constitute the offence of rape in their own right.

Key Problem with the SOA

Although the SOA 2003 goes some way to solving the problems of the previous patchwork of pre-existing offences which was the SOA 1956, the statute can be criticised at every turn. Further, this cannot be ameliorated by the context of the Act, since its review was extensive, and would naturally appear to be a marked improvement when looked at next to its 1956 counterpart, which lost any coherence it did have by a further patchwork of legislative amendments in response to changing social norms and political expediency.

As already highlighted, the key problem that comes with the SOA is its central concept of consent – the definition is vague in its scope and creates more questions than answers. Until the SOA, the concept of consent was broadly undefined – the closest that the courts had come in terms of defining the concept was by distinguishing consent from mere submission in R v Olugboja [1981]. As such, the courts had begun to give a description of what consent was not, the SOA essentially does the same. However, the definition given in section 74 does mark an advance in the law in the sense that it allows for the possibility that ‘yes’ does not always mean yes. If the victim says yes but lacks ‘freedom or capacity’ to choose, the definition suggests that this will not vitiate a conviction. Despite this, however, imprecision around the definition given still remains: as the cogent words of Temkin and Ashworth demonstrate excellently:

It might be thought that “freedom” and “choice” are ideas which raise philosophical issues of such complexity as to be ill-suited to the needs of criminal justice – clearly those words do not refer to total freedom or choice, so all the questions about how much liberty of action satisfies the “definition” remain at large.

What are the feminist concerns?

The process of evolution of sexual offences across many jurisdictions has largely been a result of an attempt to meet feminist concerns.  The first of which is that rape should be considered to be a crime of violence, and thus, that ought to be reflected in the definition of rape. Secondly, defining rape around the will of the victim tends to encourage ‘putting the victim on trial’. This, in turn, means that trials focus on the conduct and sexual history of the victim, rather than the conduct of the accused, which is so problematic that the Director of Public Prosecutions introduced guidelines intended to help victims through giving evidence in court, including advance warning of defence lawyer tactics.

A third general concern is that sexual offences must be defined with careful precision so that they are not manipulated by defence counsel or subject to the prejudices of judges or juries. These concerns are the concentration of a definition of rape which primarily focuses on force rather than consent.

The jurisdictions which instead focus on consent and relegate force to a subsidiary role, like the definition seen in the SOA, reflect a fourth feminist concern: when a person undermines the sexual autonomy of another, this may not be through the use of violence or the threat of it. As such, a definition should be provided which is expansive enough to cover other ways in which rape can be committed, such as cases involving unconscious complainants, cases of involuntary intoxication, and cases of those with physical or mental incapacity. Some might suggest that the SOA does this anyway via the evidential presumptions, but this misses the point in attempting to meet all four feminist concerns. There might also be the suggestion that the fourth concern could be met by having non-consensual penetration offences without force in the statute, but this also abandons a fundamental point which the feminist would stress: non-violent rapes ought to be labelled with the same stigma as violent rapes are under the law. Thus, it seems that the problem is that in meeting the first three of the feminist concerns there will be a failure to properly reflect the fourth, whilst meeting the fourth concern will improperly reflect the first three.  

Is there another way?

In his illuminating article, Victor Tadros argues that the appearance of not being able to meet all of the feminist concerns listed above is misleading, and that this appearance is directly due to the undifferentiated offence of rape in section 1 of the SOA. If we have an offence of rape which is structured around a single undifferentiated definition, then it would be correct in stating that it is impossible to meet all four feminist concerns.

But the misleading element lies in its undifferentiated nature: we can meet all four feminist concerns if we adopt a differentiated definition which refers specifically to the different ways in which rape can be perpetuated. That way, we could protect the idea that rape can be a crime of violence, whilst catering for the ways in which rape can be perpetuated without the use of violence. Further, by differentiating the offence, and not having a patch-work of offences in a statute, which is arguably what the SOA does, we can label all of the offences with the equal stigma which they all deserve, irrespective of how they are committed.

As such, the offence would be like the offence of manslaughter, wherein there is no single definition, but rather different kinds of manslaughter. If rape were to work in the same way, the third feminist concern of imprecision would be met, since each individual way of perpetuating rape could have its own specific requirements. As a result, although it is not thought that all of the problems surrounding rape trials will be solved, the pattern of unduly focusing on the conduct of the complainant would hopefully be reduced, since differentiating the offence would mark out the violence used in cases of violent rape whilst not excluding a conviction of rape in cases which do not involve violence, and as such a focus will be provided for the prosecution to try and prove and for the defence to try and counter. This will be unlike the state of affairs now, where an undifferentiated offence allows for a vast amount of scope regarding the particular act in question, the conduct of the complainant, and the issue of consent.

Conclusion

What is abundantly clear is that rape trials as they currently go on cannot continue for the sake of the complainant. The central concept of consent, with its vague definition and its philosophical emptiness which allows room for exploitation by defence counsel, must be tightened up considerably to prevent the circus of manipulation which turns the courtroom into a laughable charade. In the words of Stephen Schulhofer “in rape law, flexibility almost inevitably means under-enforcement and non-compliance.’”

If we are serious about creating a fair process where the complainant can receive justice for the damage which has been caused to them, which the current government does not seem to be, given their recent cuts to funding for rape organisations, the offence of rape in its current undifferentiated format must change.

The notion of consent can be seen in the law at almost every turn – it is consent that enables one person to do something which would otherwise be a violation of another person’s rights. However, the notion of consent in relation to sex is special. Special in the sense that it must be designed with the utmost care and precaution to provide all the protection that a person needs without burdening an otherwise innocent and natural activity.

In a world in which humans are not only sexually attracted to each other, but aggressively seek to have sexual relations with each other, it is of crucial importance that people should have their decision not to engage in sexual intercourse respected in the highest manner. The current definition of consent under section 74 of the SOA hinders this dramatically. That said, there should not be an overprotective, paternal interference with an act (usually) of harmless pleasure, in which there is creation of criminal liability for conduct that need not concern the law.

However, it is imperative that the law strives to get the balance right, which may not include the idea of consent in such a fundamental way. The current balance is arguably not even a balance at all, given how much the process can be so fundamentally skewed in favour of the defendant. It is time to rebalance the scales, stop asking the wrong questions directed towards the victim, and to start asking the right ones.

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Tagged: Criminal Law, Sexual Offences

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