Shortly after the case of R v R The Criminal Justice and Public Order Act 1994 section 142 which substituted section 1 of the Sexual Offences Act 1956 was introduced. The European Court on Human Rights (ECHR) rejected the claim that the conviction in R amounted to retrospective lawmaking in violation of Article 7 of the European Convention. This rejection was further illustrated in the case of R v Barry Crookes who appealed against his conviction of his then wife on the grounds that the trial contravened European Convention on Human Rights 1950 Article 7(1). In 2002 the defendant was convicted of the rape of his wife during the time they were married from 1967 until 1971. The appeal arose from the trial judge’s refusal to say the count of rape was an abuse of process. The defendant held that before the judgement in R v R a man could not be committed for the rape of his wife and therefore, it was contended that the count of rape was an abuse of process as the count of rape would not have been treated as an offence of rape at the time it was committed. It was argued that the legislation can not be used retrospectively to convict husbands of rape and to do so would infringe the defendant’s human rights. The appeal was dismissed on the basis that in R v R Lord Lane CJ observed that a new offence was not being created but rather a common law fiction had been removed. Consistently with the outcome of R v R, it was clearly established by R v Graham L [2003] that a man could be properly convicted of raping his wife when the incident occurred before R v R. (2) Article 7(2) of the Convention provided ample justification for a husband’s trial for the rape if his wife, according to the general principles recognised by civilised nations. The prosecution for rape did not infringe his rights under the Convention. The ECHR plainly stated that the ‘abandonment of the unacceptable idea of a husband being immune against prosecution for rape of his wife in conformity not only with a civilised concept of marriage but above all, with the fundamental objectives of the Convention, the very essence of which is respect for human dignity and human freedom.’
It seems that convictions of husbands for the rape of their wives have become increasingly successful. However the Lord Chief Justice although making it clear that date rape and rape by a husband or partner must be treated as seriously by courts as rape by a stranger said in practice many “relationship rapes” will continue to attract lower sentences than stranger rapes because of mitigating factors in the former or aggravating factors in the latter. Acquaintance rapes are more likely to be ‘no-crimed’ or discontinued than stranger rapes, whether, purely on evidential grounds or partly because they are less easily regarded as convincing by criminal justice professionals.
The 1994 Act as well as criminalising rape within a marital relationship through elimination of the word ‘unlawful’ from the statutory definition, other fundamental changes to the definition of rape were bought about. Firstly, anal intercourse was included along with vaginal intercourse and with this the law now recognised that a man can rape a woman or another man. It has been argued that this ignores the reality of rape, as ‘it is still men who are raping and women who are being raped.’ However, this reform rightly recognises that sexuality today is diverse and rape of males is an increasing fact of the twenty-first century. Secondly, this definition is gender neutral in that the offence is classified as rape whether the victim is a woman or man. This is possibly a reflection of the currency of the term ‘male rape’ where male rape can only involve anal intercourse whereas rape of a woman may involve vaginal and/or anal intercourse. Before 1994 the maximum sentence for buggery of a woman without consent was life imprisonment compared with the maximum of ten years for buggery of a man without consent and one effect of the 1994 amendment was to provide a single maximum sentence of life imprisonment.
In 2000 the Home Office published Setting the Boundaries: Reforming the Law on Sex Offences, which was a report to the Home Secretary from the Sex Offences Review which he set up in 1999. This reviewed sex offences in the common and statute law of England and Wales and the recommendations made were firstly, to provide coherent and clear sex offences which protect individuals, especially children and the more vulnerable, from abuse and exploitation; secondly, to enable abusers to be appropriately punished; and thirdly to be fair and non-discriminatory in accordance with the ECHR and Human Rights Act 1998.
The report outlines the problems with the present law particularly highlighting the marked inequality of the treatment between homosexual and heterosexual sex. The proposal put forward was that there ought to be one legal position and the focus of the law should be on protection and criminal law should not interfere in the sexual behaviour of consenting adults. It was further recommended that the offence of rape should be extended to include fellatio (oral sex). Some however, believed that rape should be confined to the act, which can lead to the risk of conceiving a child, with everything else regarded as a form of indecent assault. In addition it recommended the creation of a new offence of sexual assault by penetration to cover all non-penile forms of penetration of the anus or genitalia. This recognised that the present law may not include transsexuals either as victims or perpetrators. The report suggested that offence definitions expressly take account of males and females who have undergone gender reassignment surgery.
On the issue of mens rea the Home Office report proposed that recklessness in rape should include the person who ‘could not care less’ about consent, that is a ‘person who fails to take all the steps which are reasonable in the circumstances to find out if there is free agreement on the occasion in question.’ Along side this proposals were made to determine whether the consent element in rape should be left to the jury to decide on a case by case basis in accordance with the decision in Olugboja or whether the law should attempt to define consent, for example, as free agreement and set out a non-exhaustive or exhaustive list of the circumstances in which consent will be deemed to be present or absent.
Emphasis was put on the inconsistent and divergent sentencing across the country and this was largely resulting from the relatively high minimum penalty, which was making juries reluctant to convict. It was suggested that this could be overcome by having two degrees of rape – ‘stranger’ rape and ‘acquaintance’ rape. The Home Office defined acquaintance rape as a rape, which involved a man who the victim had met within twenty-four hours. This alone is debatable because it does not in depth explain how well you need to know the person. To clarify this for example, perhaps a length of time should be specified. Without more specific guidelines of how an acquaintance is defined the decision as to whether a rape is regarded as acquaintance rape or stranger rape would become rather subjective. The law may perhaps categorise a particular rape case as an acquaintance rape however, the victim may not regard the defendant as such so disparities between the law and victim’s notion of what an acquaintance is may become apparent. It is highly questionable which one of the two types of rape if any is more traumatic for the victim and in turn, which one would hold the lengthier punishment. Stranger rape is considered to be a more frightening experience because it is seen as being a violent attack in which the victim is placed in a life-threatening situation and the stranger rapist is not seen as an opportunist, but as someone deliberately setting out with the intention of committing a sexual assault. It can be argued that victims of acquaintance rape may in fact suffer the same degree of violence and consequently equal levels of trauma as a victim of stranger rape. So, it does not seem justifiable if it was intended that acquaintance rape carried a shorter imprisonment period to give any less than a maximum penalty of life imprisonment simply because due to the victim falling within the category of ‘acquaintance’. Furthermore, a consistent view point throughout the literature published by the Government in November 2002 concerning ‘date rape’ clearly articulates that ‘rape is rape’ and cannot be divided in this way into more or less serious offences. Therefore, it appears rather contradictory to formulate the two categories of stranger and acquaintance rape.
One of the principles underlying in this report was whether new offences including rape should be gender neutral which would follow in the way of the Australian Law whose laws are gender specific. The Home Office’s riposte to this was that the offence of rape is clearly understood to be non-consensual penile penetration perpetrated by a man, on a woman or a man. The anatomical differences between men and women must sensibly direct that the offence of rape should remain an offence that only can be physically performed by a man. It has also been claimed by rape commentators that gender specific laws ‘raise unique and important issues of male and female power. It invokes the differences in male and female ways of understanding force and consent and each other.’ These views are however, not shared by all commentators.
Following the proposal set out in the Governments report 2000 the definition of rape saw yet another revision bringing it to the current 2003 definition. Section (1) (1) (a) of the Sexual Offences Act now includes the offence of fellatio as well as anal and vaginal rape. This opened up debate as to whether rape should also include penetration with the aid of an instrument. However, a stronger argument exists that for fair labelling reasons rape should be limited to penetration by the penis.
Despite the reforms of 1994, the law of rape has continued to evoke controversy. Some commentators on the rape laws have concluded that the laws are inherently defective; because they have their origins in a patriarchal society, ‘reform attempts will inevitably be half-baked.’ According to this view the laws on rape ought to start again from contemporary liberal and feminist first principles regarding women’s equal interests in and rights to sexual autonomy and physical security. The essence of such self-expression is that it should be voluntary both in giving and receiving. Therefore, even when a sexual assault involves no significant physical force, it constitutes harm in the sense the sense that t invade a deeply personal zone, gaining non-consensually that which should only be shared consensually. Values such as autonomy and privacy are bound up in all sexual cases, but ideas of sexuality bring several other values and disvalues –self-expression, intimacy, shared relationship; and shame, humiliation, exploitation and objectification- which find recognition neither in the substantive criminal law nor in many of the normative discussions of it. However, ultimately, the offence of rape should serve to protect sexual integrity and autonomy.
Speech by David Blunkett MP as cited in http://www.pm.gov.uk.
Ashworth, A. (1999). Principles of Criminal Law. 3rd Edition. Oxford University Press. p. 351.
Allen, M. (2003). Textbook on Criminal Law. 7th Edition. Oxford University Press. p. 365.
Sexual Offences Act 1993, s.1 as cited in http://uk.westlaw.com.
Ashworth, A. (1999). p. 352.
[1985] AC 147 as cited in http://uk.westlaw.com.
Ashworth, A. (1999). p. 352.
Ashworth, A. (1999). p. 352.
Ashworth, A. (1999). p. 352.
[1981] 73 Cr App R 164 cited in http://uk.westlw.com.
Clarkson, C.M.V. and., Keating H.M. (1994). Criminal Law: Text and Materials. 3rd Edition. Sweet and Maxwell. p. 579.
Clarkson, C.M.V. and., Keating H.M. (1994). p. 579.
http://www.sentencing –advisory-panel.gov.uk/research/rape/research.pdf.
[1992] A.C. 599 as cited in http://uk.westlaw.com.
Smith, J.C. (1999). Smith and Hogan; Criminal Law. 9th Edition. Butterworths. p. 460.
Smith, J.C. (1999). p. 461.
[2004] EWCA Crim 292 as cited in http://www.lawtel.com.
http://www.homeoffice.gov.uk.
http://www.guardian.co.uk.
Clarkson, C.M.V. and., Keating, H.M. (2003). Criminal Law: Text and Materials. 5th Edition. Sweet and Maxwell. p. 610.
Ashworth, A. (1999). p.352.
Allen, M. (2003). p. 378.
http://www.homeoffice.gov.uk.
Ashworth, A. (1999). p.352.
Allen, M. (2003). p. 378.
[1982] QB 320. Judge would need to provide some direction on the definition of consent and the nature of this direction would depend on the consequences of the particular case.
Setting the Boundaries: Reforming the Law on Sex Offences 2000 cited in http:://www.homeoffice.gov.uk.
http://www.sentencing-advisory-panel.gov.uk/research/rape/research.pdf.
Protecting the Public: strengthening protection against sex offenders and reforming the law on sexual offences. As cited in http://www.homeoffice.gov.uk/docs/ptp.pdf.
Clarkson, C.M.V. and., Keating, H.M. (2003). p. 610.
Clarkson, C.M.V. and., Keating H.M. (1994). p. 589.
Clarkson, C.M.V. and., Keating H.M. (1994). p. 589.
Ashworth, A. (1999). p. 349.