Having looked at MacKinnon's statement I have decided to look at the general attitude towards rape and what the law says in respect to the general feeling, the overall finding and the development in law show that considerable change have been made. Misconception and stereotypical behaviour still occurs but the issue of rape is more understandable. Rape is a crime of violence and power, the penis is used as a weapon in the same way as an attacker might use as a knife. Rape might be carried out as a revenge, but there are other complex issues involved it is not just about sex.
Some feminists have argued that rape is really a weapon against women. A 1976 study carried out for the queens bench foundation found that rapist were not precisely motivated by sexual desire it was all about humiliating and dominating the victim. 1 Rape is one of the serious sexual offences against the person. Rape used to be an offence at common law and the common law definition of rape continued in force until the Sexual Offences (amendment) Act 1976. The SO Act 1956 simply stated that 'it is an offence for a man to rape a woman'
The concept of rape is not about the physical attraction for example some people may believe that the way the women dress may contribute to the rap, it is about vulnerability. The stereotypical view that rape is committed by a stranger on a dark night when a woman is walking alone is more like a myth because this does happen but very rarely . Research has shown that although this form of rape exists two in three rapes are committed by someone the victim knows. The actual rate of being by someone the victim knows is not clear, as the victim is unlikely to report it .
In the case of Hall (1985) where it was found that only five percent of women raped reported the offence compared to 31 percent of women raped by strangers. The Sentence Advisory Panel has sought to end the judicial practice of relatively lenient sentences to men convicted of raping wives, girlfriends or women they know, and the impact of rape was 'equally serious whatever his or her relationship with the offender' The facts of a woman being raped by someone she knows brought changes to the law on martial rape and for that of date rape.
The alleged rape of TV presenter Ulrika Jonsson has bought the issue of 'date rape' in to new form. The govement plans to reform law and thus proposals will restrict the defendant of 'honest belief' which currently enables a defendant to clam he mistakenly thought there was consent to sex. This will also remove the cultural shift that 'date rape' is some how not a real crime. 2 The end to the law of martial exception made it unlawful for a husband to force sexual intercourse upon his wife.
Therefore in law today, conduct that satisfies the definition of rape consists of an offence whether the victim knew the rapist or not. The jury in each case will look upon the facts of the trial to conclude whether or not to believe the defendants conduct and how it may fit in with the definition of rape. Social norms give limited rights to a women over her own body, she can say 'no' but only up to a point, some may hold the view that when a women says 'no' she actually means 'yes'.
Therefore it is for the man to fight back the women and over come her resistance. Matza (1964) points out that cultural norms enable rapists to use techniques of neutralisations such as 'she asked for it' 'she enjoyed it' I was drunk' 'she's a prostitute or promiscuous so it did not matter to her. ' These misconceptions are also backed up by judges for example 'all she had to do was keep her legs shut' 'no does not always mean no', it is clear tat unless these views are not changed that the majority of conviction rates of rapists will not change.
Including more women in the legal process in interpreting and enforcing the law will contribute towards changing these cultural and social norms within a male dominant system. Therefore it is far from clear that the law on sexual offences is one of the more sensitive areas of criminal law. Sex offences, more than any other part of the criminal Law, reflect the attitude of society to sexual behaviour, sexual orientation, and sexual exploitation. Many of these attitudes reflect a fundamental view on life and behaviour, which vary widely from the most to the least tolerant.
The Corroboration rule was that a judge was required to warn the jury of the danger to convict a defendant just on the basis of the evidence of the complaint. These still could be convictions without evidence corroborating what the women said, and the warning but the jury may place right on what the judge had to say, and the warning that the women were liars and were prone to alleged rape may well here raised dough were none would have existed without. Both the Law Commission (1991) and the Royal Commission on Criminal Justice (1993) recommend that the corroboration be abolished.
Due to the recommendations and widespread criticism the CJPO (1994) under s32-34 abolished this rule and it is no longer mandatory for judges to this warning, it is discretionary. Thus the warning is still given by judges, the Court of appeal held that the warning should be given in exceptional circumstances only. The trial procedure of a rape trial raised considerable questions as to the fairness of both the victim and the offender. These are three main concerns that have been identified in the conduct of a rape trial.
Firstly issues are raised to the cross examination of victims by he defence lawyer. Secondarily the direct questioning of a defendant to a victim. Thirdly the irrelevant questioning about the complainant sexual history in order to degrade and make them seem like an unreasonable man or women. A study carried out by Victim Support in 1996 conducted that the cross-examination as 'patronising', and 'worse than the rape'. A number of women complained that they had been asked intrusive and inappropriate questions about the private lives. 3
Studies carried out by in the case of Lee (1997) on rape trials concluded that questioning was detected simply to discrediting the complainant in the eyes of the jury, rather than electing relevan4. Further research has also concluded the same finding in Kelvin and Zeisel (1996) it was held that juries may be distracted from real issue of offences due to the lengthy investigation of a witness is character during cross examination5. The language of the defence solicitors could also be very distressing to victim and degrade her character considerably.
Paul Rock examined this were the defence council described the complainant as 'a spiteful, bitchy women with a drink problem' in another trial the complainant was called a deceitful, conniving , drug pushing, lesbian6. The issue of changing the law in relation to cross examination of a victim of rape was raised in the publicised case of Julia Mason who was subsequently cross examined for six days by her attacker. In the case of Brown (1998)7 lord Chief justice stated that cross examination should be taken over by the trial judge because defendants are being engaged in reputation and irrelevant questioning.
It was due to this parliament brought fourth new interventions under the Youth Justice and Criminal Evidence act 1999 s34 would impose an absolute prohibition on any person charged for a sexual offence to cross examine the victims themselves. Another area for reform was to the examination of victims past sexual history. Evidence of victims past sexual history was used to undermine the victim, for example a women having sex with other men other than her husband is immoral and cannot be trusted. Thus only good reliable women deserve protection from rape.
Therefore it was believed that past promiscuity to sexual intercourse of a women equalled permanent willingness and therefore has less right to say no and is more likely to lie. A female writer, Carol Smart in 'Feminism and the power of law' implicates that if a women consented to sex with various men in the past she would probably consent to anyone including the defendant8. The Heilbron committee implied that new reform were necessary, it held that evidence of a women part sexual history should only be admissible if it concerns past sexual history with the defendant.
The cross examination of the victim as to their previous sexual experience that was supposedly restricted under s2 of the sexual Offences (Amendment) Act (1976) occurs all to frequency and can give the impression that the complainant is on trial. Victims can be asked their history and character, which defendants cannot, once called as witness they have to stand; a defendant may choose not to. Once at the witness box the victim is subjected to questioning by both counsels.
The will feel isolated, intimidated and in some cases 'self blaming' may result from such proceedings such evidence as to the victims previous sexual history is therefore irrelevant at trial. If the hearing results to acquittal or an inadequate sentence, this will lead the victim believing that it was not worth reporting the offence at all. Lord Pontis in the case of Brown (1997) described the questioning of witnesses as 'merciless cross examination designed to intimidate and humiliate them9. Section 41 lays restrictions as to evidence and questions that can be adduced in relation to the complainant's sexual history with accused.
Although these legislation hav come into force they do not alwas prevent the complainant from humiliating questioning10 It was held in the case of Lawrence (1977)11 that the defendant could question the complaint about past sexual relations with other men. If such questions "might reasonably lead the jury, property directed in the summing up to take a different view of the complainant evidence from which they might take if the questions or series of question was or was not allowed"12. The same deviation was held in R v Viola (1995)13 it was stated that the defendant credibility was fundamental importance.