The last 14 years has seen many changes in the law surrounding the offence of rape.
LAW 123: CRIMINAL LAW II. STUDENT NUMBER: 0003 0743 7 01
WORD COUNT: 2,973.
ASSESSED ESSAY QUESTION 2003/2004.
Introduction.
The last 14 years has seen many changes in the law surrounding the offence of rape. Until 1992 rape within marriage was still seen as legal and it was only in 1994 that legislation was changed to provide for male victims of rape. Despite this, in 1994 only 460 cases of the 5,032 recorded rapes were convicted, and in 1995 there were only 150 reported cases of male rape. The Sexual Offences Act 1956 has been criticised for being archaic and not in keeping with modern society. Many of its provisions, particularly the ones surrounding rape were reproductions of existing 19th century law.
This essay will discuss the problems surrounding the existing laws on rape, particularly the areas of consent and recklessness. It will also discuss the Sexual Offences Act 2003, which is due to come into force in May 2004. This Act will hopefully simplify and bring up to date the laws of sexual offences. This said, there has also been much debate on certain sections of the new Act, this will also be discussed.
The Sexual Offences Act 1956.
The offence of rape is contained in the Sexual Offences Act of 1956 but many of its sections actually date back to the century before. This was a time where society was more concerned about a woman forcibly having her virginity taken away than the actual emotional and psychological damage inflicted on her.
Even since 1956 the social climate has undergone a massive change, thus rendering the 1956 Act archaic and often difficult to put into context in modern situations. Paul Boateng, the minister of state for the Home office said "The law of sexual offences is confused and confusing"1. He also went on to say that many offences that were covered were not representative of modern society. This was not the only criticism of the 1956 Act: in 1985 The Howard League stated the fact that there were "No formal distinctions between sexual offences and other offences."2
Since 1990 the original Act has been subject to certain statutory amendments in relation to rape in order to bring it into the realms of modern society. The first amendment came in 1992: Under the Sexual Offences (Amendment) Act 1976, Section 1 (1) defined rape as "unlawful" sexual intercourse. Unlawful was interpreted as "outside the bond of marriage", meaning that there was in effect no such thing as marital rape because a wife gave automatic consent to sexual intercourse whether she wanted to or not. In the case of R v. R3 the trial judge overruled the defence of "marital immunity" and found R. guilty of rape. On appeal the House of Lords4 Lord Keith stated that modern marriage was "A partnership of equals, and no longer one in which a wife must be the subservient chattel of the husband." The House of Lords therefore overturned the common law idea of marital exemption, holding that "unlawful" no longer had any meaning in the context of rape and R's conviction was upheld. In 1994 The Criminal Justice and Public Order Act removed the word "unlawfully" from the statutory definition of rape.
The Criminal Justice and Public Order Act 1994 also dealt with the issue of male rape. The 1956 Act limited rape to vaginal intercourse; this meant that there were no provisions under the Sexual Offences Act for male victims of rape. Section 1 of the 1956 Act was amended by section 142 of the 1994 Act which stated:
"(1) It is an offence for a man to rape a woman or another man
(2) A man commits rape if:-
a) He has sexual intercourse with a person (whether vaginal or anal) who at the time of intercourse does not consent to it; and
b) At the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it."
Although this substantially broadens the definition of rape it still makes no statutory provisions for situations involving male to female transsexuals; this is because a person's sex is fixed on their birth certificate, so the question is whether a ...
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(2) A man commits rape if:-
a) He has sexual intercourse with a person (whether vaginal or anal) who at the time of intercourse does not consent to it; and
b) At the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it."
Although this substantially broadens the definition of rape it still makes no statutory provisions for situations involving male to female transsexuals; this is because a person's sex is fixed on their birth certificate, so the question is whether a surgically constructed orifice can be defined as a vagina? In Matthews5 Hooper J. stated that a man who has penile penetration into an artificial vagina when the victim is not consenting is still guilty of rape. This has provided protection for male to female transsexuals under the common law.
Situations will also arise in modern society where female to male transsexuals are accused of rape; there are currently no statutory implementations in place to provide for this. Similar questions will arise as to whether a surgically constructed "phallus" can be defined as a penis? It would seem likely that if this situation arose, because the defendant is still legally female (according to their birth certificate), that because a woman is legally unable to commit the offence of rape, the defendant will be charged with a lesser offence of indecent assault. Although justice may be seen to be upheld, the victim will probably still consider themselves to have been raped and experience the entire emotional trauma that goes with it, not to mention the added stigma of the unusual circumstances. This has lead feminists and other commentators to call for the law to become more gender neutral, as is the case in certain jurisdictions in Australia6.
Alongside this argument is the question of whether non-consensual oral sex should be included in the definition of rape. At present it comes under a lesser offence, but many believe that it is just as amoral as vaginal and anal rape and not downgraded to the ranks of indecent assault with only a 10 year maximum sentence.7
Consent: The Actus Reus of Rape.
The actus reus of rape is defined in section 1(2) (a) of The Sexual Offences Act 1956 which says that rape is sexual intercourse without consent. Unfortunately the Act does not give any guidance on how to interpret the meaning of the word "consent"; this has lead to many problems in the past, namely because the absence of consent does not have to be demonstrated, nor does it have to be communicated to the accused. This ruling takes into consideration various situations where the victim may not be able to communicate their lack of consent to the accused such as when the victim is drunk, drugged, asleep, mentally disabled or other situations where the victims knowledge is such that they are unable to communicate their consent or non-consent; an example of this would be the case of Williams8 where a singing teacher raped his female pupil by telling her that it was an exercise to improve her voice.
The problem arises in cases of "force, fear or fraud" for which consent is also no defence. The main authority in this is the case of Oluboja9. The victim in this case had just been raped by O's companion, O asked her to remove her trousers because he wanted to have sex with her. Because she was so frightened she did not resist. O was convicted of rape and appealed on the basis that rape required that the "submission" of the victim was bought about by force or threat of force and that because the judge had failed to inform the jury of this he had misdirected them. This argument was rejected by the Court of Appeal and in summing up, Lord Justice Dunn stated:
"We do not think that the issue of consent should be left to a jury without some further direction... They should be directed that consent, or the absence of it, is to be given its ordinary meaning and if need be, by way of example, that there is a difference between consent and submission; every consent involves submission, but it by no means follows that mere submission involves consent..."
The Court of Appeal said that the judge's direction had been sufficiently close to this approach and there had been sufficient evidence to render the conviction safe.
The decision in Oluboja has been subject to much criticism because it throws up a number of issues; the first being that it is left for the jury to decide the issue of consent on individual cases, this will no doubt lead to inconsistencies in convictions. A secondary factor of this problem is that it departs from common law procedure which would allow more precision when dealing with cases of this nature.
Secondly, Lord Justice Dunn gave a very vague explanation of the difference between "consent" and "mere submission". This could prove to be problematic when cases similar to Oluboja arose and the question of lack of consent was not an obvious one; the jury may interpret "mere submission" to mean "reluctant consent". This can be summed up in Carol Smart's writing "Law's Truth/ Women's Experience".10
"The law in seeking to find innocence or guilt cannot accommodate the supposed ambiguity of submission to a sexual assault. Either a woman does not consent or she consents. If the former cannot be established the later must have occurred. Hence in laws domain the more that non-consent can be made to look like submission, the more it will be treated like consent."
Mens Rea and Recklessness.
A man will have the mens rea for rape if he either knows that the victim is not consenting to intercourse, or is reckless as to whether the victim consents or not.11
Rape is a crime of basic intent so the accused cannot rely on the defence of intoxication, it would therefore seem that the intention part of the mens rea of rape is quite straight forward as it is difficult to see how any other defence could be raised. The problems arise with the meaning of recklessness. For a time the courts used the Caldwell12 definition of recklessness but this changed in the case of Satnam and Kewal S13 when the Court of Appeal decided that no regard should be paid to the Caldwell ruling, instead a subjective test should be used where the defendant "could not care less" whether the victim was consenting or not. This can appear quite confusing especially when taken into consideration with decisions like the one in Morgan14 where the House of Lords held that if the defendants held an honest belief that their victim was consenting, no matter how unreasonable that belief, they could not be found guilty of rape. There is much controversy surrounding these decisions, it would appear that the more sexist or unthoughtful a man and his attitudes were, the easier it would be for them to be found not guilty of rape. A recent Court of Appeal decision would appear to back this up; in Adkins15. The court accepted the defendant's failure to address the question of whether or not the victim consented to intercourse. More recently the Caldwell recklessness concept has been overruled in the case of R v. G and another16 and the subjective test for recklessness was reaffirmed in cases of serious crime.
Someone who has been raped should be entitled to expect the protection of the criminal law and it would seem that allowing the burden of proof to fall on the defendants attitude towards the opposite sex, ("no" means "yes") is outdated and unsafe. The defendant's belief in consent is an easy defence to raise but very difficult to disprove.
Rape and The Sexual Offences Act 2003.
In January 1999 the Labour Government announced that it was commissioning a review of the law relating to sexual offences. In July 2000 the Home office published their report "Setting the Boundaries: Reforming the Law on Sexual offences", the result of this was The Sexual Offences Act 2003 which is set so come into force in May 2004.
This is seen as a landmark statute because it repeals almost all of the 1956 Act and the other statutory provisions that have been made since in order to reflect "changes in society and social attitudes".17
Section1(1) of the 2003 Act states that rape is now committed where a person, (A):
(a) 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
(2) 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.
(3) Sections 75 and 76 apply to an offence under this section.
A person found guilty of rape is liable to life imprisonment.
Although section 1(1) is still very gender specific; with the requirement of "penile penetration", section 79(3) of the Act explains references to parts of the body, so "penis" includes "a part surgically constructed, in particular through gender reassignment therapy". This therefore allows for the notions that not only are transsexuals able to be raped but they are also able to commit rape.
Another major change is that the definition of rape now encompasses non-consensual oral sex. There was much debate on this subject, many thought that by allowing this it would devalue the offence and make juries less likely to return a guilty verdict. Forced oral sex could also be placed in the category of "assault by penetration" which also has a maximum penalty of life imprisonment. The home office committee rejected these criticisms on the basis that forced oral sex could be just as traumatising and carries similar risks of disease transmitting as vaginal and anal rape.
Most importantly the concept of recklessness has been replaced by a requirement to prove the absence of reasonable belief. Removing recklessness and limiting the mens rea of rape to "intentional penetration" should hopefully simplify the decision making process in future cases.
Under this new Act there are now 4 elements which have to be proved by the prosecution. Firstly that the defendant intentionally penetrated the vagina, (mens rea). Secondly that the vagina, anus or mouth was physically penetrated by the defendants penis, this changes the previous actus reus of "sexual intercourse" to "penetration by the penis". This removes any confusion over when intercourse commences, how long it should last and whether it is a continuing act. The slightest penetration is sufficient, section 79(9) confirms that full entry is not necessary because vagina includes vulva.
The third thing to be proved is that the victim did not consent, and fourth that the defendant did not reasonably believe that the victim consented. The sexual Offences act 2003 departs from the Oluboja approach to consent and instead sets out a general definition of consent18 and a list of evidential and conclusive presumptions19 which the prosecution may refer to to prove absence of consent.
Although the Act has not yet come into force, and so there will be no cases to enable to see how affective these provisions are, there have still been doubts raised about various sections, namely the ones surrounding consent. The list of circumstances in section 75 does not include threats other than those of immediate violence; this could impose limitations and be restrictive in its implementation. The Government said that by introducing terms such as "serious harm or detriment" would give rise to too much uncertainty in decision making. This list in section75, although extensive does not allow for further situations to be added through common law judgements as it only allows Parliament to make additions. This is problematic because although the list caters for most situations it is by no means exhaustive and should really be seen as a set of guidelines rather than statutory law.
There has also been criticism about the general definition of consent in section 74 in the fact that it is still too vague and leaves too much to the interpretation of the jury. Having said this, it is much clearer than the old recklessness test.
Conclusion.
It has been shown that since 1990 there have been several amendments to the Sexual Offences Act 1956, the major changes coming into being with The Criminal Justice and Public Order Act 1994. However none of these Amendments have redefined rape as extensively as The Sexual offences act 2003. But has this Act set out to do what the Government intended; that being that it is more simple to understand, less discriminatory and more in keeping with modern society? It certainly seems that the Act has made rape a more gender-neutral crime and in abandoning recklessness and giving formal definition to the meaning of consent it has possibly cleared up a substantial amount of uncertainty when it comes to deciding whether or not to find a man guilty of rape. It may however, be seen as taking things a little too far by including forced oral sex in with the definition of rape when a lesser charge of assault by penetration could easily be bought against the defendant. Finally although the Government has tried to tie up any loopholes that existed in the 1956 Act, there may be new loopholes in the 2003 Act. Time will tell if the Sexual Offences Act 2003 fairs any better than its predecessor.
Home office (1999 a).
2 Howard League, 1985, Para. 2.3.
3 R v. R, (1991) 4 All ER 481.
4 R v. R (Rape: Marital exemption), [1992] 1AC 599.
5 (1976), unreported.
6 Crimes Act (1958), s 2A (1), (Victoria, Australia).
7 Sexual Offences Act (1985), s. 3.
8 Williams, (1923) 1 KB 340.
9 Oluboja, (1982) QB 320.
0 In R. Graycar, (Ed) Dissenting Opinions, op cit, pp. 9, 10, 14, 16, 17-18.
1 Section 1 (2) (a & b) Sexual Offences Act 1956.
2 R v.Caldwell (1982) AC 341.
3 R v. Satnam and Kewal S (1984) 78 Cr App R 149.
4 DPP v. Morgan (1976) AC 182.
5 R v. Adkins (2000) 2 All ER 185.
6 R v. G and another (2003) UKHL 50.
7 Home office, Protecting the Public (Cm 5668, 2002) para. 4.
8 Sexual Offences act 2003, section 74.
9 Sexual Offences Act 2003, sections 75 & 76.
