Critically analyse the extent to which the interests of the female victim have been addressed in the ensuing reforms of the law of rape

• She asked for it;

• She enjoyed it;

• Women are masochists;

• “I have a strong sex drive”;

• “I was drunk”;

• She is a prostitute;

• She is promiscuous; it did not matter to her.

Other generally held beliefs include:

• Once aroused, a man can’t stop;
• Woman has only herself to blame – is partially or totally responsible for being raped if she has behaved in a flirtatious manner. Research reported 34% of people in the UK believe that a woman is “partially or totally responsible for being raped if she has behaved in a flirtatious manner”. The research also showed that similar attitudes exist in relation to clothing, drinking, perceived promiscuity, personal safety and whether a woman has clearly said “NO” to the man. The fact that these rape myths are so widely believed has considerable implications for the willingness of juries to convict in cases of rape.
• No means yes – part of the sex game (Morgan 1976);
• To avoid guilt, shame and regret – cry rape.

Mirrored by the judiciary:

• All she has to do is keep her legs shut;
• Women who say no do not always mean no;
• She was guilty of contributory negligence.

Quite simply, most rape victims who do report the offence to the police will never even see their case reach court, never mind see the perpetrator convicted for rape. While more and more men are being reported to the police for rape, the proportion that are convicted for rape has been steadily falling since records began (Smith, 1989; Chambers and Miller, 1983; Lees and Gregory, 1993; Harris and Grace, 1999; HMCPSI and HMIC, 2002; Lea, Lanvers and Shaw, 2003). These studies show that the ratio of rape convictions to reported rapes has steadily fallen from 1 in 3 in 1977 to 1 in 20 in 2002 (Kelly, 2004). Bearing in mind that most rapes are not even reported to the police, this 1 in 20 figure is particularly concerning and has been the basis of much campaigning by activists groups. Moreover, Kelly (2002) warns that attrition may actually be even higher than research has found because such studies do not take into account rapes that are reported to but not recorded by the police, or any convictions that are overturned on appeal. New research has found that around 1 in 10 convicted rapists later have their convictions overturned or sentence reduced on appeal (Cook, 2004).

In order to secure a conviction for rape it is necessary to prove beyond reasonable doubt not only that the defendant committed an act that meets the legal definition of rape but also that the defendant knew that the victim was not consenting. These are known as the actus reus (the guilty act) and the mens rea (the guilty mind, or criminal intent).

The actus reus of rape within the SOA 1956 was simply defined as unlawful sexual intercourse with a woman, which was amended in 1976 to unlawful sexual intercourse with a woman without her consent. The 1990s saw two major changes relating to the actus reus of rape.

In 1991, after over 100 years of feminist campaigning rape within marriage became illegal within the common law system and this was placed into statute in the CJPOA 1994 when the word ‘unlawful’ was removed from the definition. Where it had previously been judged in common law that married women had no capability or authority to ‘not consent’.

“The sexual communication between them is by virtue of the irrevocable privilege conferred once for all on the husband at the time of the marriage...”

The criminalization of marital rape was controversial within legal circles. This is because when it was criminalized in 1991 it was seen as being criminalized by judge-made law rather than the elected government.

The case in question was R v R where it was alleged that a husband had attempted to have sexual intercourse with his estranged wife without her consent and physically assaulted her by squeezing her neck with both hands. The issue was not whether he had attempted to force his wife to have sexual intercourse without her consent, but whether this fell under the legal definition of ‘unlawful’ sexual intercourse. Relying upon Hale’s now infamous statement the defence argued that because the acts were against his wife this could not be classed as unlawful.

The Court of Appeal concluded:

“We take the view that the time has now arrived when the law should declare a rapist a rapist subject to the criminal law, irrespective of his relationship with his victim”.

This judgement was later upheld on appeal to the House of Lords and at the ECrtHR.

The SOA 2003 defines the actus reus of rape as penile penetration of the vagina, anus or mouth of another person without their consent. Therefore, in terms of its actus reus, rape has slowly changed over nearly half a century from unlawful sexual intercourse with a woman to penile penetration of the vagina, anus or mouth of another person without their consent. The widening of the actus reus to include penile penetration of the mouth is based on arguments made in the SOR 2000 that other forms of penetration (penile penetration of the mouth, or vaginal or anal penetration with an object or another part of the body) should be treated just as seriously as penile penetration of the vagina or anus. It was decided that rape should be extended to include penile penetration of the mouth, on the basis that

“…forced oral sex is as horrible, as demeaning and as traumatising as other forms of penile penetration”.

This means that it remains a gender-specific offence with regard to the perpetrator (the act requires a penis) but a gender-neutral offence with regard to the victim. A new offence of assault by penetration was introduced to cover penetration by objects other than a penis, as with rape carrying the maximum sentence of life imprisonment.

The second part of the actus reus relates to a lack of consent. There are generally three lines of defence used in rape cases; that intercourse never took place, that it took place but not by the accused or that it took place but that the victim consented to it or that the accused believed that the victim consented to it (Baird, 1999). Baird (1999) highlights that there are very few rape cases that are ‘whodunnits’, and the defence that sexual intercourse never took place is also rare. These defences are likely to have become even less common since developments in DNA testing (Lees, 1996). The issue of consent is therefore what many rape defence arguments focus on, and one of the aims of the review of sexual offences was to ‘clarify the law on consent’

The root of the ‘consent’ problem lies with the requirement of the prosecution to prove the absence of consent (rather than requiring the defence to prove that they had taken steps to ascertain consent), and in many ways this problem is unique to rape cases. If, for example, a person reported that their car had been stolen it would not be necessary to prove that it had been taken without their consent. Similarly, if an individual were physically assaulted, for example punched in the face, they would rarely be asked if they agreed to be punched in the face. A further problem in rape cases is that the only direct witness is likely to be the rape victim, which means that cases often come down to one person’s word against the other. If the defendant says that the victim consented and the victim says she did not consent then it is difficult to validate either person’s statement of the act. Because of the nature of sexual offending it is unlikely there would be a third party available to directly corroborate either statement.

The case of Olugboja in 1981 however, appears to have changed the standards needed to show non-consent. In this case it was ruled that consent was a state of mind and that the jury should be directed to make up their own minds as to whether consent was present based on the victim’s state of mind at the time of the rape. This appears to overturn the legal standards that had been developed using the ‘category approach’. However, this is unclear and Temkin (2000) described the situation as having a ‘threefold uncertainty’. The first element of uncertainty was because there was no statutory definition of consent. Secondly, the Olugboja decision individualised cases regarding consent hence moved away from the idea of a legal standard of non-consent. Finally, there was uncertainty regarding whether or not Olugboja had replaced the previous common law ‘category approach’.

The SOA 2003 addressed these uncertainties by defining consent as “a person consents if he agrees by choice, and has the freedom and capacity to make that choice” and by returning to the category approach by listing the categories in statute. However, the 2003 Act differentiates between six categories where consent is presumed to be absent, unless there is sufficient evidence to the contrary to raise an issue that the defendant reasonably believed that the victim consented, and two categories where consent is conclusively presumed to be absent. This means that the issue of consent still, to some extent, relies upon the mental state of the defendant, even in cases such as where the victim was asleep, experiencing violence from the defendant, or unlawfully detained, although the ‘burden of proof’ is reversed in these situations with the defendant required to demonstrate the steps he took to ascertain consent.

This second part of the offence of rape – the mens rea – is based on the principle that an individual should not be punished for an act that they did not know they were committing at the time of the act. Although the actus reus and the mens rea are components of all crimes, the mens rea only becomes relevant when the conduct in question contains some level of ambiguity. The need to prove both the actus reus and the mens rea is applicable to other crimes besides rape. The most regularly used example is the crime of trespass; it is against the law to trespass onto another’s property, but a person cannot be convicted if they did not know they were trespassing. Whether or not a person intended to commit a crime is probably more central in rape cases than for other criminal offences when it comes to proving the ‘guilty mind’.

Previously, if a man committed the actus reus of rape – the guilty act, but he honestly believed that the woman was consenting regardless of how unreasonable that belief was, he can not be convicted of rape because the mens rea – the guilty mind – was not present. This was known formally as the ‘mistaken belief’ clause and informally as the ‘rapists charter’ (Temkin, 1987) because it meant that a woman could be actively non-consenting, even shouting ‘no’ and struggling to free herself, and a man could still be acquitted of rape. It is a defence that is very difficult, if not impossible, to disprove because the defence relies upon what was going on the defendant’s mind.

The ‘mistaken belief’ clause was first introduced in Morgan in 1976 when a husband colluded in the raping of his wife by three of his friends. He allegedly told his friends that his wife would struggle and say ‘no’, as though she did not want to have intercourse with them, but that this ‘turned her on’ because she was ‘kinky’. The accused men claimed that they honestly believed she was enjoying it and consenting and that they did not intend to rape her – in other words they never had a guilty mind. Although in the Morgan case the men were convicted, and the husband convicted of aiding and abetting, this case set a new precedent. The House of Lords ruled that if a man honestly believed that a woman consented, regardless of how unreasonable this belief was, he could not be found guilty of rape.

Feminist activist groups campaigned for many years that the mistaken belief defence should be based on some test of reasonableness or that the mistaken belief clause should be abolished altogether. These are issues that have been widely debated throughout the common-law world. In Australia this issue divided rape law reform campaigners into two groups; the ‘subjectivists’ who argued that the Morgan ruling should be upheld – i.e. if a man honestly believes that a woman consents to sexual intercourse regardless of how unreasonable that belief is he should not be found guilty of rape, and the ‘objectivists’, who argue that the belief should be reasonable (Gans, 1997).

In the SOR 2000 there was much debate about the mistaken belief defence, but no clear agreement was reached as to what should be recommended. Around a third of the respondents to the rape and sexual assault section of the Review argued that Morgan should be changed so that a belief must be both honest and reasonable. Alongside these responses, a postcard campaign to Jack Straw (then the Home Secretary) was organised by the feminist activist group Campaign to End Rape, which called for a total dismissal of the Morgan ruling. The debate within the review was not whether Morgan should be changed per se, but rather how it should be changed, and what, if anything should replace it.

Once a woman sets in motion a complaint that she has been raped, she will have to undergo a prolonged ordeal. The beginning of the 21st Century saw a major overhaul of the sexual offences legislation in England and Wales. The criticisms feminist academics and activists have highlighted in terms of rape law in England and Wales are similar to those described in other countries with adversarial legal systems. Most rape victims who report the offence to the police will never even see their case reach court, never mind see the perpetrator convicted for rape. While more and more men are being reported to the police for rape, the proportion that is convicted for rape has been steadily falling since records began. The actus reus relates to a lack of consent. There are generally three lines of defence used in rape cases; that intercourse never took place, that it took place but not by the accused or that it took place but that the victim consented to it or that the accused believed that the victim consented to it. After much debate, the SOA 2003 defined the mens rea of rape as if ‘A does not reasonably believe that B consents’. Whether or not the belief is classed as reasonable is determined after regarding all the circumstances, including any steps A may have taken to ascertain whether B consents. Despite so many reforms, it could still be said that the legal system fails to take in to account the interests of the female victim because the stigma attached to rape is still there. The reform can be seen as more of a judicial reform, to aid judges to arrive at a firm conclusion than as a reform which has in particular taken the interests of the rape victim into consideration. The research conducted by Amnesty International still suggests that a third of the UK population still blame the woman for being raped.

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