The Sexual Offences Act 2003: Introducing Reforms to Rape Legislation - Case Study Example

The Sexual Offences Act 2003: Introducing Reforms to Rape Legislation The complexity of the crime of rape, loaded as it is with historical baggage and cultural stigma, makes the law on rape truly a mirror of how far our society has gone in terms of its understanding of gender and human rights, and how much it has let go of its antiquated beliefs. During the early times, women were treated as chattel and commodities – their bodies the property of their husband or the male figure that exercises control and authority over her life. Sex was seen simply as the exercise of the rights of a man, a manner of using his property. In later day, when the autonomy of the female body was recognized, rape was criminalized. Despite the many centuries that have passed, many of the beliefs and biases that have animated patriarchal laws have still managed to leave their imprint on present-day legislation. A reexamination of the purpose of the law is long overdue (Wells, 1985). That precisely is what makes the crime of rape so different from other crimes in the statute books. There are complex issues of gender and power involved and the body is perceived as a political field (Duncan, 1995). To quote Baron and Strauss (1987): According to feminist theory, rape functions as a mechanism of social control in patriarchal societies (Brownmiller, 1975; Riger and Gordon, 1981). Feminist theorists argue that rape and the fear of rape enable men to assert their power over women and maintain the existing system of gender stratification (Adamec & Adamec, 1981; Barry, 1979; Brownmiller, 1975; Riger and Gordon, 1981; Russell, 1984; Sanaday, 1981). Clark and Lewis (1977) argue that rape is more likely to occur in societies where women are regarded as the sexual and reproductive possessions of men. In such societies, men sustain their power and privilege and enforce their sexual rights through threats or use of force. Baron and Strauss further went and described the four theories that underlie the crime of rape, in their paper that presents a theoretical model which integrates the four macrosociological theories of rape. They describe these four theories as follows: One theory holds that rape is a mechanism of gender inequality. A second theory attributes rape to the proliferation of pornographic materials. A third, called cultural spillover theory, maintains that cultural norms which favor violence for socially legitimate purposes tend to be generalized to other social contexts and increase the likelihood of rape. And a final theory holds that social disorganization reduces social constraints against rape. When one has a situation wherein the woman was voluntarily intoxicated immediately preceding and during the time of the rape, the complexity of the issue exponentially increases. Issues of consent and mens rea come into play. In an online article dated December 6, 2006 and entitled “Juries blame women for drunk rape”, (Internet, 2006) it was reported that an experiment was conducted with funding from the Economic and Social Research Council, and such experiment revealed that “jurors are still blaming women if they willingly get paralytic, even if their drinks are spiked with extra alcohol.” The issue of consent is extremely important in that very few cases of rape, particularly in this age of DNA testing, involve a defendant alleging that no sexual intercourse happened (Baird, 1999). In most cases, the defense proferred is that the alleged rapist had believed that consent was given and thus negativing criminal intent. The case of Ryairi Dougal is illustrative. In effect, the court ruled that “drunken consent is still consent.” This case involved a university security guard and a drama student. The drama student had attended a party at Aberystwyth University where liquor was being served. By her account, she had two glasses of vodka and a glass of wine. She felt ill and vomited in the ladies’ toilet of the University Arts Centre. She told the jury, “My dress was in a state and I wanted to leave the centre. I then went out onto a patio for some fresh air. I was losing all focus and was feeling very dizzy." A woman then approached her, took a look at her condition, and then insisted that someone accompany her home as she was not in a state to go home alone. That person was Dougal, the university security guard and part-time student. The last thing she remembered was lying down on the corridor outside her flat. When she went to counselling a few days after because she sensed that something had happened but was not sure what, an investigation ensued. When Dougal was questioned, he stated that he had consensual sex with the drama student. That was the first time that the woman found out that she had sex. In the trial, was quoted as saying: “"If I had wanted to sleep with him I would have taken the few steps to my bedroom." However, the Court decided in favour of Dougal and the judge agreed with the prosecution when it decided to discontinue the case. The Crown Prosecutor Service stated after the case, “It was the prosecution case throughout that consent was not given. Under cross-examination I think she accepted that she could not remember refusing and it could not then be said there was no reasonable doubt.” He furthermore added, “The judge had said that more care should be taken during pre-trial case reviews before going to trial. When a review is conducted, it is conducted on the paper case. Of course, a trial is dependent on live evidence from witnesses in the evidence box and the two things do not always match up." The Dougal case is covered by the Sexual Offences Act of 2003, which states that no consent has been given if a woman has been proven to be unconscious or asleep. It moreover compels the accused to prove that he had “reasonable ground” for believing that consent had been given – as opposed to the former rule that merely requires for acquittal that he “honestly believed” consent had been given. The Sexual Offences Act 0f 2003 The Bill received Royal Assent in November of 2003. It introduces a more improved framework in understanding and trying sexual offences. Important measures in the act have been enumerated as follows: it seeks to clarify issues surrounding consent in rape and sexual assault cases; it gives children the greatest possible protection against sexual abuse; for the first time, it provides a specific set of offences to protect persons with a mental disorder; it tackles the commercial exploitation of people for sexual purposes through prostitution and traficking; it strengthens the protection for society from convicted sex offenders living in the community. Most important to this paper is how the Act redefined the concept of “consent”. As earlier mentioned, in the law as it currently stands, the accused, in order to secure an acquittal, must be able to prove that he had reasonable grounds to believe that the victim gave her consent. Prior to 2003, the Sexual Offences Act of 1956 read: ‘at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it’. Before the amendment was introduced in 2003, a controversy ensued in the case of DPP v. Morgan (1976 AC 182) where the Court held that “an honest mistake that the victim was consenting could negative mens rea, even though the mistake was not reasonable.” In the said case, a husband conspired with his friends to have his wife raped. The husband assured his friends that though his wife might appear to be struggling and saying no, she would be enjoying herself because she was “kinky”. Though the husband and the friends were convicted, the case set a dangerous precedent in that the judge accommodated the possibility of an honest mistake under absolutely unreasonable circumstances. This disturbing scenario is addressed under the 2003 Law, because the law now requires that the mistake be “reasonable.” (Westmarland, 2004). Section 1(2) of the Act reads: “Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps [the defendant] has taken to ascertain whether [the victim] consents.” Equally significant is Section 75 of the Act, which creates a rebuttable presumption that the victim did not consent and the defendant had mens rea under certain circumstances. These circumstances are as follows: * Violence or the threat of violence was used against the complainant or a third person, * The complainant was unlawfully detained, * The complainant was asleep or otherwise unconscious when the offence was committed, * Due to a physical disability, the complainant was unable to communicate a consent, or * The complainant had been given a substance, which was capable of causing them to be stupefied, or overpowered at the time of the attack. The doctrine on consent has passed through murky waters, indeed. In the case of Olugboja 1981 3 All ER 343, the Court ruled that consent was a “state of mind”, thereby throwing “consent” into a terrain of uncertainty and leaving it to much judicial discretion. Under the SOA 2003, consent was defined by stating the following: ‘a person consents if he agrees by choice, and has the freedom and capacity to make that choice’ (section 74). In the case of R v. R {1992} 1 AC 599, the Court held that it is possible for a husband to commit the crime of rape against his wife. In the case of A, R v. [2001] UKHL 25; [2001] 3 All ER 1 (17th May, 2001), it was held that “a prior sexual relationship between the complainant and the accused may, depending on the circumstances, be relevant to the issue of consent.” In the case of R v Seaboyer (1991) 83 DLR (4th) 193, 258, 278C, which was quoted in cases in this jurisdiction, “unchaste women were more likely to consent to intercourse and in any event, were less worthy of belief" However, at the end of the day, no amount of amendments to the law can introduce felt changes if they are not accompanied by a genuine change in how people think and how people perceive women and gender roles. Says Martin (1997): Understandings of rape are fused with cultural representations of sexuality and gender. For example, the connections between rape and consent/coercion in sexual relations and power/domination in non-sexual gender relations are contested issues. (MacKinnon 1987). Most rapists are men (or boys) and most victims are women (or girls), a condition that makes gender an issue in the perpetration and prevention of rape, as well as in research and theorizing about it. Given the gendered character of rape crimes, one might expect officials who process them to have a “theory” about gender and rape. This of course does not exclude arbiters, i.e., judges and juries. As human beings they do have ideological biases that, whether wittingly or unwittingly, enter into their decisions. In the Preface to a Critique of International Legal Ideology, Susan Marks defined ideology as the “ways in which meaning serves to establish and sustain relations of domination” In a situation wherein a judge is tasked to determine the liability of a man who has sex with a woman who voluntarily got herself drunk, he is not asked to merely make a simple decision. It is not a cut-and-dried issue. A huge part of the decision is based on his value system, his paradigms, and his understanding of gender. (Altman, 1986) Indeed, we welcome the developments brought about by the Sexual Offences Act of 2003. However, and this is a huge however, this is not to say that the problem has been solved. By and large, the problem is and always will be a society that continues to stereotype against women and create standards with which to judge them. Until the time comes when women are freed from these shackles, laws protecting them will not go very far. The argument therefore at the end of the day is a simple but strong one: reform the law to help create conditions that will aid women in seeking redress from the courts, but ensure that these new laws are carried out to full fruition and solid implementation. References Altman, A. (1986) Legal Realism, Critical Legal Studies and Dworkin. Philosophy and Public Affairs, vol. 15, no. 2. 217- 244. Baird, V. (1999) Changes to section 2 of Sexual Offences Act 1976, Medicine, Science and the Law, 39 (3), 198-208. Baron, L., & Straus, M. “Four Theories of Rape: A Macrosociological Analysis.” Social Problems, Vol. 34, No. 5 (Dec., 1987), pp. 467-489. Duncan, S. “Laws Sexual Discipline: Visibility, Violence, and Consent.” Journal of Law and Society, Vol. 22, No. 3. (Sep., 1995), pp. 326-352. Marks, S. “Preface to a Critique of International Legal Ideology. The Riddle of All Constitutions International Law, Democracy, and the Critique of Ideology. London: Oxford University Press. 2003. Martin, P.Y. “Gender, Accounts and Rape Processing Work.” Social Problems, Vol. 44, No. 4 (Nov., 1997), pp. 464-482. Wells, C. “Law Reform, Rape and Ideology.” Journal of Law and Society, Vol. 12, No. 1 (Spring, 1985), pp. 63-75. Westmarland, N. “Rape Law Reform in England and Wales.” School for Policy Studies Working Paper Series. Paper No. 7. April 2004. “Definitions of Sexual Offences under the 2003 Act.” 2004-2005. Available at http://www.legalappeal.co.uk/pages/sexual_offences/definitions_of_sexual_offences_2003.php. Last visited January 14, 2007. “Drunken Consent is Still Consent.” November 24, 2005. Available at http://news.independent.co.uk/uk/legal/article328993.ece. Last visited January 14, 2007. “Juries blame women for drunk rape”. December 6, 2006. Available at http://www.metro.co.uk/news/article.html?in_article_id=28225&in_page_id=34. Last visited January 13, 2007. “Men face jail for rape if women are too drunk to consent in bed to boost convictions.” December 28, 2006. Available athttp://www.thisislondon.co.uk/news/article-23379673-details/Men+face+jail+for+rape+if+women+are+too+drunk+to+consent+in+bed+to+boost+convictions/article.do. Last visited January 14, 2007. Read More