Discuss the legal and extra-legal forces

How has the definition of the offence of rape changed through history? Discuss the legal and extra-legal forces that have acted and interacted to bring about these changes. Rape is still one of the crimes which people find most difficult to bring themselves to report. It is estimated that one in every five women has been raped to some extent during their lives and various studies have come to the conclusion that only 20% of even the most serious cases are reported to the police.

Since the Sexual Offences Act was passed in 1956, there have been amendments brought about by several controversial cases, but only recently has the act been changed with the aim of making the criminal justice system more 'user friendly' and trying to encourage people to come forward and report what has happened to them. In this essay I will discuss the forces, both legal and extra-legal, which have acted on and brought about each amendment. In 1956 the Sexual Offences Act stated that "it is an offence for a man to rape a woman".

Rape is defined here as "unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it". This definition was seen as discriminatory, as it said that only women could be raped and here, the actus reus of the offence of rape is incredibly limited – the man must have no consent from the woman when the act takes place and it must take place outside marriage. The greatest problems at this time came with the exact definition of the lack of consent, as it is difficult for this to be proven and there were no guidelines which could be followed in order to come up with a fair verdict.

This was considered in 1976, when the amendment act added the clause stating that the jury has regard to the "presence or absence of reasonable grounds" for a belief that consent was given. This amendment probably came about due to the fact that from 1973, the number of recorded offences of rape rose dramatically. With such an increase, the terms of the act needed to be clarified. One of the cases which was a main factor in this amendment was the case of DPP v. Morgan (1976).

Here, Morgan invited his friends to have intercourse with his wife, claiming that if she protested it was because she was 'kinky' and it increased her sexual pleasure. In court, the men pleaded not guilty of rape, as they believed that consent had been given. The case reached the House of Lords where it was stated that "the prohibited act in rape is non-consensual intercourse, and…. the guilty state of mind is an intention to commit it". 1 The House of Lords held that the mens rea for rape is not present where he committed the act in honest belief that the woman was consenting.

The men in Morgan were not seen to be reckless as to the wife's lack of consent, as Morgan had assured them that there was no risk that her consent was not present. Another case relating to consent is that of R v. Olugboja (1982). In this case, Olugboja raped a woman after his friend had already done so and as she was so scared that she did not protest. Here, Dunn LJ stated that "'consent' should be given in its 'ordinary meaning'", that is to say not under physical of psychological stress, or in fear of harm. The next minor change was the law regarding the age of rapists.

In 1989, the Draft Criminal Code recommended that the law should state that a boy under the age of fourteen could commit rape. Around this time there was an increased amount of media coverage of 'schoolyard rape', using subjective language and appealing to public interest and sympathy. It is possible that it was with regard to this that parliament acted in 1993 and changed the law. In 1991 the case of R v. R (1991) brought about another change. The husband, separated from his wife, went to her house and forced sexual intercourse upon her.

He then claimed that as they were still married, the term 'unlawful' in the act meant that he had not committed rape. This case also received vast media coverage and became a public affair. Various women's groups became involved, protesting that the increase in separations whilst divorce is pending meant that the act could be violated. The case concluded in the House of Lords, who refused to apply the immunity usually provided by the use of the term 'unlawful' in the Act on the grounds that it had become anachronistic with regards to the ever changing moral expectations of the modern world.

Following this, in 1994 there was a major reform of the definition of the offence of rape. The gender specificity of the law was reduced so that only the gender of the perpetrator was a factor and it now became an offence for a man to rape a woman or another man and have sexual intercourse with a person (whether vaginal or anal) who at the time of the intercourse does not consent to it. This was again partly due to gay rights pressure groups and also the changing face of society, in which homosexuality was becoming more widely recognised. The most up to date review of the law came about in 2000.

In 1998, a Sex Offences Review Steering Group was set up in order to try and bring the law up to date. The aim was to provide coherent and clear guidelines to sex offences and make the criminal justice system more accessible for the victims of sexual offences. The group consists of women's groups including Liberty and the National Network on Violence Against Women, children's charities and medical, ethical, legal and religious groups. Organisations representing lesbian, gay, bisexual and transsexual interests were also present, but lawyers and men were in the minority.

There was also a public consultation exercise with around 160 responses from around the country. The recommendations put forward included extending the definition of rape to forced oral sex and surgically reconstructed male or female genitalia should be included in the law. These definitions existed previously in Australia and the resulting proposals may have been derived from this. Although pressure groups have always played a minor part in the amendment of the sex laws, it has usually been specific cases which have caught public interest and brought about changes.

In Canada, for example, after a prolonged campaign involving feminist writers and women's organisations, the National Association of Women and the Law (NAWL) put forward a proposal to Parliament which led to a change in the law on sexual offences. This review in England is the only case which I have come across which actively invites pressure and support groups to participate in the re-shaping of the law. In the opinion of the pressure groups who have long been battling for such a change, the reform is long overdue.

The law on rape essentially dates back hundreds of years, from a time when society was substantially different, with only minor amendments. In conclusion, it is this interaction of both legal and extra-legal forces which should lead to the clearest, fairest and most approachable law which we have had so far on the offence of rape.

Bibliography

Allen, Michael J Criminal Law, 8th edition, 2001 Card, Richard Criminal Law, 1998 Honore, Tony Sex Law, 1978 Lees, Sue Judicial Rape, Women's Studies International Forum, Vol. 16, 1993 Seago, Peter Criminal Law, 4th edition, 1994