The Relevance of Victim's Volunary to a Charge of Rape - Essay Example

? “Is Drunken Consent Still Consent The Relevance of Victim’s Voluntary Intoxication to a Charge of Rape I. Introduction There is no doubt that in situations where a person alleging rape had been forcibly intoxicated by her alleged rapist before commencing sexual intercourse without her consent, both the jury and the society at large will agree with minimum dispute that the crime of rape had indeed been committed. The perpetrator gets convicted and goes to jail, and the victim heals her wounds with the support of a nurturing community. The situation becomes complicated when the victim becomes intoxicated by her own doing, and consumes a quantity of alcohol that compromises capacity to give consent. There becomes a dispute as to whether or not consent was given and whether there was enough to engender a reasonable belief on the part of the defendant that consent had indeed been given. But beyond the thorny legal issues concerning the threshold of consent and capacity, there are sociological issues that emerge. These are issues that touch upon socially-constructed notions of how women should behave and value-laden idealised assumptions of “proper women” This paper will look closely at the issue on voluntary intoxication and capacity to give consent in rape cases vis a vis the Sexual Offences Act 2003. It will attempt to draw out the competing perspectives on the issue and the complex problems, as well as the embedded social assumptions within the discourse. It begins by providing an overview of the law in question, the Sexual Offences Act 2003, the legal framework for the prosecution of rape. Then, it lays the contextual background of the issue at hand, voluntary intoxication and consent, looking closely at the case of R v. Dougal2 and R v. Bree3. After which, it looks at the various angles of the issue and reflect on the ways legislation can be improved in a manner that is sensitive to the victim, cognisant of the due process rights of the accused, and will over-all serve the interests of justice. II. The Sexual Offences Act 2003 The Sexual Offences Bill was introduced into the House of Lords in January of 2003, was passed to the House of Commons in June of that same year and received Royal Assent five months later, or in November of 2003. The Act replaced the Sexual Offences Act 1956, and all its amendments. The said Act saw the evolution of the definition of rape – the actus reus – from its original definition in the Sexual Offences Act 1956 which was “unlawful sexual intercourse with a woman” to “penile penetration of the vagina, anus or mouth of another person without their consent.” The inclusion of the anus and mouth as body parts renders it now legally possible for a male to be raped, but the retention of the word “penile” limits the defendant in a charge of rape to only male. The charge of “assault by penetration” is used to cover circumstances wherein objects other than a penis are forcibly inserted into the aforementioned orifices, and exacts the same penalty as rape. The next issue is the “mens rea” or the guilty mind – this means that the person accused of committing the crime knew that he was committing the crime. In the context of rape, it means he knew that he did not secure the victim or the complainant’s consent when he proceeded with having sexual congress with her. In the past, UK law relied upon the “mistaken belief clause” which was in the case Morgan4 in 1976. Here, the accused men were informed by the husband that his wife would struggle and say ‘no’, but they should just continue because she was in truth enjoying it. Whilst they were eventually convicted anyway, the case set a troubling precedent: if there was an honest belief engendered in a man’s mind that a woman consented to sex, even if that belief is unreasonable, the requirement of men rea is unsatisfied and therefore the rape charge will not prosper. Westmarland (2004: 7) provides a succinct summary of the definition of rape in the Sexual Offences Act 2003, to wit: The reformed rape law, as of May 2004 can thereby be summarised as if ‘A’ intentionally penetrates the vagina, anus or mouth of ‘B’ with his penis, and if ‘B’ does not consent to the penetration and ‘A’ does not reasonably believe that ‘B’ consents (paraphrased from section 1 of the Sexual Offences Act 2003). However, there were still many issues that remain unanswered, particularly with regard to consent. How is consent given? How is consent to be believed? How does one characterise ‘reasonable belief’? These are the issues that muddle the crime of rape, and this is made even more complicated by the fact that rape is inherently complex and political. Feminist critique of existing rape laws To provide theoretical underpinning to the issue at hand, we look at the feminist critique of the rape law, as it is framed. Feminists who have called for the reform of rape law have demonstrated that “the law of rape historically has regulated competing male interests in controlling sexual access to females, rather than protecting women’s interest in controlling their own bodies and sexuality”. (Roberts, 1993: 359). This is a fascinating proposition, and jibes with the conflict theory of criminal justice, which looks as criminal laws as having an agenda supportive of a dominant class. In the case of rape, the dominant class might be the male gender. This is further reaffirmed by other scholars. According to Schafran, (1993: 397): (I)n the law, men’s life experience has been treated as the norm. For example, rape laws are a codification of men’s fears of false accusations…. The “maleness” of law is expressed in many different ways – among them, laws and regulations; the cases that lawyers take or refuse; what is taught in law schools; what is taught in law schools; and how judges, juries and other decision makers interpret, apply and enforce the laws – and in many more areas of the law than is usually realized. A good example of this is the way rape cases are prosecuted and the evidence required to convict a rapist. Because rape often takes place in confined and private places, there is a greater probability in rape cases than in other criminal cases that there would be no other witness but the victim himself or herself to testify to the veracity of the claims. Hence, there is a greater deal of subjectivity and in many cases, the victim herself feels as if she is put on trial – with the truth and acceptability of her testimony dependent on how closely she resembles society’s perception of how a woman should be and behave, and how she fits into her “assigned gender role”. To understand this notion of assigned gender roles, it is imperative to consider the notion of gender as social construct and see how men and women are assigned different social roles and are treated or considered differently because of perceived biological differences. As expressed by Lorber (1994: 56) – Western society’s values legitimate gendering by claiming that it all comes from physiology – female and male procreative differences. But gender and sex are not equivalent, and gender as a social construction does not flow automatically from genitalia and reproductive organs, the main physiological differences of females and males. In the construction of ascribed social statuses, physiological differences such as sex, stage of development, color of skin, and size are crude markers. And yet, unfortunately, it is these crude markers that too often determine the outcome of rape trials. If a woman is tomboyish, unattractive, or in any other sense, short of the acceptable standard of “femaleness”, such “condition” has tended to cast doubt on the validity of the rape case – again looking at rape through the vantage point of the male. Only an attractive woman can arouse a man’s sexual libido, the logic might go. Yet another example is the persist notion that rape must be accompanied by physical force or violence, e.g., there must be signs of struggle. Not only is this wrong from a legal perspective, because it is blind to the many other ways that a women might be compelled to have sex against her will even without the use of brute force (e.g., blackmail), it also frames the issue of rape simply as an issue of physical violence, no different from other cases of physical assault. This fails to account for the power relations embedded within a crime of rape. Says Roberts, “The greatest challenge to feminist reformers has been crafting a legal remedy for this political aspect of rape’s injury to women – one that accounts for rape’s violation of both women’s bodies and humanity, and that grasps how rape is both criminal and derived from ordinary relations between men and women. (1993: 360)”. Feminist theorists would also look at how the current rape law and rape prevention policies obscure other categories of differentiation such as race and economic class. There is a need to look into how these categories of differentiation interrelate with gender to create subordination and vulnerability. Iglesias (1996) says: The material impact on women’s lives when they acquiesce in this double standard and allow their choices to be driven by the psycho-social pressures of the “good mother” narratives is at least in the discourse of white feminism, economic subordination, increased dependence and greater vulnerability to their male partners… which our sexuality is repeatedly assaulted and repressed. (915) III. Involuntary Intoxication This paper now proceeds to look into the whole issue surrounding involuntary intoxication, which goes into the heart of the notion of consent. Whilst there are differing opinions as to whether or consent is a state of mind5, or it is an action6, either way, alcohol ingestion makes consent problematic. If consent is a state of mind, alcohol at a certain level addles and distorts the mind in a state of inebriation. If consent is an action, alcohol has behaviour-altering effects and can impair speech and physical movement in such a manner that consent becomes ambiguous. To use the definition given by Cowan, “to be in a state of intoxication means that one’s mental and physical capacities are substantially altered from one’s ‘sober’ state, through the ingestion of intoxicating substances. (2009: 904)” To better understand the situation at hand, we look now at the two important cases of R v. Dougal and R v. Bree. The first case, which was decided in 2005, was decided in favour of the defendant because the complainant could not remember, as she was intoxicated, whether or not she had given her consent to have sexual intercourse with the defendant, who was a Security Guard in their school, even though she asserted that in her sober moments, she would never have considered having sex with a man she just met. The jury was instructed to find the defendant not guilty. In the second case, the defendant went for a night out with his brother and his brother’s friends, including the complainant. They consumed large quantities of alcohol. According to the complainant, she could barely remember how she got home, of Bree washing her hair, and going to her own bed, but when she came to her senses, she discovered that she had been penetrated sexually by the complainant. The complainant conceded that she did not say no, but said that she had never given her consent. The defendant agreed that she was intoxicated but also said that she was capable of giving her consent, and the defendant reasonably believed that he had secured her consent. The trial court convicted Bree, and Bree took it up on appeal with the Court of Appeals, on the argument that the Trial Court did not make a finding as to whether the complainant was intoxicated and could not have given her consent, or the complainant was in fact capable of giving her consent and gave it. Upon elevation to the trial court, the court ruled as follows: if the complainant has temporarily lost her capacity to choose, she is not consenting...However where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape.7 Eventually, the charge against Bree was dismissed, but such was the furor over the issue that the issue of intoxication became one of the foremost concerns in legal and academic discourses on rape and consent. IV. Analysing the Two Sides of the Issue Perhaps best articulating the conundrum is Schulhofer (1998: 14-15) in his book entitled Unwanted Sex: The Culture of Intimidation and the Failure of the Law: “‘The law’s willingness to find consent in cases of severe alcohol impairment should be considered intolerable, but a standard that suggests rape anytime alcohol plays a part in sexual consent would be intolerable as well”. How do we draw the line? How do we protect women from predators who take advantage of their vulnerable state, whilst at the same time ensure that the courts are not used to litigate “morning-after” regret? Obviously, when a complainant is incapacitated then there is no question. A man taking advantage of her incapacitated state is a rapist, even if prior to her incapacitation she had given indications that she was willing to engage in consensual sex. The question comes in when a woman has capacity to give consent, but her capacity to articulate that consent becomes impaired by the temporary effects of alcohol after voluntary intoxication. Looking at it from the perspective of the due process of the defendant first, it does not seem fair that impaired capacity to articulate consent be interpreted as absence of consent. There are conclusive medical findings to the effect that alcohol consumption does reduce inhibition and make physical signals and verbal signals rather difficult to discern. Also, there seems to be an inherent inequity in the formulation that sexual intercourse whilst extremely drunk but not incapacitated can make a case for rape. This is because it is very rare that women drink on their own, while the potential rapist or attacker just watches idly, sipping coffee. More often than not, both would be engaging in alcohol drinking during a fun night of revelry, so it is not only a case of diminished capacity to articulate consent, but also diminished capacity to appreciate consent that should be taken into consideration. Indeed, everything is thrown into ambiguity. Moreover, evidence-wise, it can be argued it is also difficult to get an accurate testimony of the incident, considering the effects of alcohol on memory. Without diminishing the reputation of the complainant and without insinuating a deliberate intent to conjure up a baseless rape charge when in fact what took place was consensual sex, it is plausible that a woman would not have had sex with the defendant if she were not under the influence of alcohol but because of it, she did and perhaps would have no recollection of explicitly giving consent, knowing only upon waking up that she “reasonably” would not have sex with him under sober circumstances. This goes into the whole issue of “mens rea” – what happened may have been unfortunate and regrettable, but was it rape? Can it really be said that the defendant had sex with a woman who he had reasonably believed to have said no to his advances, or it might it have been a case of alcohol impairing only judgment but not consent? The issue raised in the case of Bree is also problematic – according to the Court of Appeal, the trial court failed to ask the question as to whether or not the victim would have behaved in the same way had she not been intoxicated. This can be problematic, because impaired judgment is not the same as impaired consent. Now we proceed to looking at it from the perspective of the complainant or the rape victim. A look at Section 75.2 of the Sexual Offences Act shows that the presumption of non-consent with respect to alcohol intake applies to two scenarios: first, when the victim is unconscious, whether or not she had had voluntarily taken the alcohol which rendered her unconscious8; and second, when the victim was forcibly made to ingest alcohol that enabled her to be “stupefied or overpowered9”. This means that the law confers privilege to the woman who was raped through involuntary drunkenness, but not to the woman who was drunk as a result of her own decision and actions. This has the unfortunate consequence of categorising cases of rape and consequently, categorising rape victims. Rumney and Fenton (2008: 288) articulates eloquently the main critique of this kind of privileging: What is disturbing about this is that the end result of voluntary intoxication may well be the same as for all the other situations covered by section 75, that is, the complainant does not have capacity to consent and her sexual autonomy is eroded. This statutory omission is reminiscent of the notion of the ‘deserving victim’: the ‘ideal’ victim does not get herself drunk, she is able to control her own intoxication and if she does not do so, she does not deserve the protection of the law. The social attitudes surrounding women who voluntarily drink appear to support this notion of deserving victim, an unfortunate image that is reproduced over and over again through various processes. In a groundbreaking work, Finch and Munro (2006: 303) looked at the attitudes of mock jurors towards the consent provisions in the Sexual Offence Act. They found that for some participants, ingesting alcohol on the part of the woman victim ‘was sufficient to absolve the defendant of all responsibility to the victim10’. They also found that some jurors still believe that “women who drink or flirt with men, or who take steps to initiate some intimacy, cannot complain when men take this behaviour to imply a willingness to engage in intercourse thereafter.” Finch and Munro also found that: the introduction of the requirement that the complainant agree by choice in circumstances of capacity and freedom, while predicted to promote a more proactive and communicative understanding of sexuality, did little to prevent some jurors from continuing to presume consent in the absence of positive dissent. (2005: 51) As it is, there are already grave problems in relation to the low convictions for rape, as found by the UK Home Office (UK Home Office Research Study, 2005: ix) and negative public perceptions of victims who had been raped while under the influence of alcohol. In a report conducted by the Amnesty International Organization in 2005, in UK and Wales, it was discovered that almost 30% of the respondents felt that a woman who was sexually abused while under the influence of alcohol bears some responsibility for the sexual attack.11” (ICM Sexual Assault Research, 2005) This appears to be a carryover from 19th century treatment of women who allege rape; and as Stevenson points out, “modification of these assumptions have been slower to come than changes to formal legal rules. (2005: 346)” Indeed, at a time when rape continues to be a festering problem in society and when drinking in colleges and universities are increasing rather than decreasing, these problematic assumptions and value-laden judgments about women can only serve to perpetuate antiquated stereotypes and at the end of the day hinder possibilities for genuine gender justice. V. Is there a need for legal reform? It is now incumbent to ask, “is there a need to revise the law on rape to clarify the concepts of consent and capacity in order to confront and address the challenges raised by the thorny issues of voluntary intoxication?” Or alternatively, we can also ask if the law is deficient in parts. There are indeed ways of making the Sexual Offences Act address this concern, and one obvious solution is to include a state of excessive drunkenness as one of the circumstances in Section 75 that gives rise to the presumption of non-consent until proven otherwise. By so doing, it will no longer be limited to cases of involuntary intoxication or voluntary intoxication but only when completely unconscious. The Court of Appeal in Bree however has this to say: . . . it would be unrealistic to endeavour to create some kind of grid system which would enable the answer to these questions to be related to some prescribed level of alcohol consumption. Experience shows that di?erent individuals have a greater or lesser capacity to cope with alcohol than others, and indeed the ability of a single individual to do so may vary from day to day. The practical reality is that there are some areas of human behaviour which are inapt for detailed legislative structures. In this context, provisions intended to protect women from sexual assaults might very well be conflated into a system which would provide patronising interference with the right of autonomous adults to make personal decisions for themselves. This paper would tend to agree with this formulation. Indeed, what appears to be the problem is not any gap or vacuum in the law or in the legal framework surrounding sexual offences, but in the persistent anachronistic attitudes of those who interpret the provisions of the law, and the social milieu on which it is foisted. Trying to legislate the degree to which alcohol intake can lead to incapacity is next to impossible, because the effects of alcohol vary from person to person. What needs to be addressed is the double standard in society, whereby men are allowed to drink but women cannot, if they do not want to risk sexual assault. It is important for us to remember that laws are not simply collectively-agreed upon rules that establish social order and ensure the efficient and harmonious functioning of society, they are a means by which those who have power ensure that existing hierarchical arrangements are perpetuated. It is ironic that the rape law, which should be a mechanism to protect women and create a gender-sensitive community, reflects intrinsic social biases and prejudices about how women should behave and negotiate in the world. Considering the low prosecution rate of rape cases and the shame and stigma that still attend reporting rape cases, it is imperative that these social attitudes be re-examined. Whilst the world has modernised in otherwise, persistent biases and perceptions still remain. The unfortunate consequence of this is that many rapists go scot-free and continue to rape again; but more importantly, the rape victim is made to feel invalidated and judged. No woman deserves to be raped, whether a pious young Christian woman or a party-going sexually-active university student. No woman should be denied autonomy over her body and the agency to make sexual choices. No woman deserves to have her narrative silenced, let alone mocked, by a jury and a society who think otherwise. 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Chicago-Kent Law Review. 69. 359-388. Rumney, P. and Fenton, R.A. (2008). “Intoxicated Consent in Rape: Bree and Juror Decision-Making.” Modern Law Review. Vol. 71, No. 2. 279-290. Schafran, L. (1993). “Is the Law Male? Let Me Count the Ways”. Chicago-Kent Law Review. 69. 397-414. Schulhofer, S. (1998). Unwanted Sex: The Culture of Intimidation and the Failure of Law. Cambridge Mass: Harvard University Press. Stevenson, K. (2000). Unequivocal Victims: The Historical Mystification of the Female Complainant in Rape Cases. Netherlands: Springer. Westmarland, N. (2004). “Rape Law Reform in England and Wales”. School for Policy Studies Working Paper Series. Paper No. 7. Available at http://nicolewestmarland.pbworks.com/f/Rape+Law+Reform+in+England+and+Wales+-+Westmarland+2004.pdf Read More