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 relationship1. 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 conviction2, 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 Morgan3 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"4. 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"5. 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! Obviously a defence so easy to invoke and so difficult to disprove requires limitations and these were established in 1976 in, through amendments to the 1956 Act.
These stated that juries were to be given assistance in assessing the truthfulness of a defendants claim to belief in consent by being directed to consider "the presence or absence of reasonable grounds for such a belief"6, but this does still not require the belief itself to be reasonable and as the number of reported rapes continues to climb every year it was felt changes were necessary7 These changes have materialised in the form of the Sexual Offences Bill 2002.
The new definition of mens rea rape is that "A does not reasonably believe that B consents" and goes on to clarify that 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"8. As one can see the word "recklessness" has been abolished and a new standard of "reasonable belief" is introduced. Instantly this begs the question what is "reasonable" and signals a shift from the subjective standards central to the law as it stood post-Morgan to the imposition of an external benchmark of reasonableness.
The critics of this position feel that this compromises the central thread of the English Criminal Justice System; that the law should not just punish someone for what they did but for what they intended to do. If the defendant did not intend to commit such an offence is it fair to subject him to life imprisonment for simply falling below the standards of a reasonable man? As Estrich points out cases of men who are inherently incapable of achieving this standard will be rare9, and with the consequences of rape being so distressing is not right to demand these higher standards?
In this respect I believe it is not unjust to demand a certain level of reasonableness from all men. External standards are imposed on everyone in every aspect of life through the very nature of the justice system and I see no reason why this should differ with regards to rape. 10 However, other reforms are also proposed which fundamentally shift the balance between victim and defendant and these at first glance appear to have a less sound foundation.
Clause 76 outlines the instances where it is to be presumed that the defendant did have knowledge that the victim was not consenting unless evidence can be produced to suggest that she was consenting. On the face of it this nullifies the presumption that the defendant is innocent until proven guilty and, as referred to in the question, appears to totally undermine the core foundation of the justice system. However on examining the list of instances to which this clause applies it seems to me that to presume non-consent in these instances is perfectly legitimate.
For example the list includes circumstances where the complainant was threatened with violence, imprisoned, asleep or unconscious, or where a physical disability would have made it impossible for consent to be communicated. Even prior to the new changes I find it difficult be believe that a jury would have a problem establishing that the defendant did not possess an honest belief that the complainant was consenting in these circumstances.
In conclusion I believe that the protection of victims of rape is wholly desirable and anything that can be done to ensure those guilty are convicted is to be encouraged. The new bill will now ensure that honest but unfounded beliefs will not provide a legitimate defence to rape. However I feel that any statutory change to the definition of mens rea cannot untangle the intricacies and ultimately very personal nature of the offence which is the essence of why convictions are so difficult to secure.
I do not believe that this means developments to the in this area of law are futile but do question whether the changes outlined above will result in any real increase in convictions. In my opinion further regulations governing court procedure and improvements to the actual handling of rape victims within the police station, although outside the scope of this essay, are of more importance and would produce the most real benefits in securing convictions for rape.
P. Moodie, Rape and the Criminal Justice System, section 6. 5 S. Estrich, Real Rape Law Commission Report, Consent in Sexual Offences, part VII Government Reply to the 5th Report from the Home Affairs Committed session 2002-2003 HC639 Hansard; Sexual offences Bill[Lords] in Standing Committee B, 9th September 2003 Word count;1266 1 Harris and Grace, A Question of Evidence? Prosecuting Rape in the 1990's, Home office research paper 196, 1999. These figures were based on rapes reported in 1996.