We do not need the changes to the law of rape that the Sexual Offences Bill will introduce. While the enhanced protection for victims of rape is desirable, undermining the very nature of the British criminal justice is too high a price to pay. Discuss
We do not need the changes to the law of rape that the Sexual Offences Bill will introduce. While the enhanced protection for victims of rape is desirable, undermining the very nature of the British criminal justice is too high a price to pay.
Discuss with reference to mens rea.
Rape is an extremely serious crime that can have a devastating impact on its victims and as such it carries a maximum sentence of life imprisonment. In the case of a stranger attacking someone in a darkened alley way it cannot be contested that the attacker genuinely believed in his victims consent, however so-called stranger rapes only account for 12% of all reported rapes with parties in all other instances having at least casually known each other, if not being engaged in a prior sexual relationship. It is in these circumstances that once the act of rape has been determined the issue of the defendants belief in consent, or lack of it, becomes paramount to the prosecution of the case. In 2000/2001 approximately only 7% of all rape allegations resulted in a conviction, and many more were never reported at all. It is in light of these worrying statistics that improvements to the Sexual offences Bill were sought. However, of all the changes outlined in the Sexual Offences Bill the proposals to alter the law on rape are possibly the most controversial and whether they can rightly be termed improvements is subject to much debate.
One of the key reforms deals with the mens rea of the offence of rape and it is this reform with which I am primarily concerned. Prior to the infamous case of Morgan no statutory definition of mens rea with regard to rape existed. It was simply stated that it was “an offence for a man to rape a women”. However the decision in this case became synonymous with the proposition that if a man honestly believed a women was consenting to sex, he could not be convicted of rape no matter how unreasonable his belief was. In light of this it was felt necessary to clarify through statute what level of intent was sufficient for conviction. This resulted in amendments to the Sexual Offences Act 1956 and, as it stands to be convicted of rape the prosecution must show that the defendant “knows that the person does not consent…. or is reckless as to whether that person consents”. No one would argue that if a man knows his partner is not consenting but proceeds regardless he should be found guilty of rape. The interpretation of recklessness has proved more troublesome but has been defined by case law as the notion that the man knew there was a risk that the other party might not be consenting but persisted. However, here the line is drawn. A man can only be found guilty if he falls within one of these categories. An honest belief in consent is determined to be a valid defence, and no objective standard of reasonableness is imposed other than by juries whose duty it is to consider whether this belief is genuine or not. As one can see this leads to the presumption that all a person accused of rape has to do to be acquitted is to claim that he thought the complainant was consenting, but it is argued that this allows for the defence to be invoked even when it is based on such illegitimate grounds as the defendant believing he was irresistible to all women despite anything they might say to the contrary!
