Sexual Offences Act - Assignment Example

 Women and the Law a) What factors will affect the likelihood of Drew’s conviction for rape? How important will the changes made by the Sexual Offences Act 2003 be? The Sexual Offences Act of 2003 defines rape in the following manner: “1. A person (A) commits an offence is – a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, b) B does not consent to the penetration, and c) A does not reasonably believe that B consents. 2) Whether a belief is reasonable is to be determined by having regard for all the circumstances, including any steps A has taken to ascertain whether B consents. (Sexual Offences Act, 2003) It is clear that the element of the offence demanded in a) has been met, and is not denied by Drew as he is claiming “that she consented”. The likelihood of Drew’s conviction for rape revolves around whether he “reasonably” believed that Clarice was consenting to the sexual intercourse. Rape is an essentially difficult crime to prove because of the innate difficulties in proving non-consent, especially in a case which does not involve the obviously forceful rape of a woman by a stranger. (Westmarland, 2004) Before the 2003 changes to sexual offences law it would have been very unlikely for Drew to be convicted of rape under the situation outlined. He would probably have avoided conviction because of the “patchwork quilt of provisions” (Home Office, 2000) that rape law consisted of, and also the infamous Morgan ruling that stated that “a mistaken but honest belief” in consent could lead to acquittal even if the belief in the consent was not “reasonable”. (Morgan, 1976) Here, if the defendant did not have the mens rea (even if he clearly committed the actus reus) then he would not be convicted. This was called the “Rapist’s Charter” by some feminist legal scholars because of the apparently innate difficulty in ‘proving’ a mens rea in all but the most obviously forceful of rape cases. (Temkin, 1987) Under the law, the fact that they had sexual intercourse a few weeks before this incident might be used effectively by the defense to show that Drew did indeed have an “honest” belief that Clarice was consenting (Harris, Weiss, 1995), even if it did not rise to the higher standard of “reasonable”. In Regina v. A, the Lords answered the following question in the affirmative: “May a sexual relationship between a defendant and complainant be Relevant to the issue of consent so as to render its exclusion under Section 41 of the Youth Justice and Criminal Evidence Act 1999 a Contravention of the defendant’s right to a fair trial?” (R v. A.) Lord Slynn did raise questions regarding the efficacy of this affirmation, stating the dangers involved by arguing that “evidence of previous sex with the accused also has its dangers . . . it may lead the jury to accept that consensual sex once means that any future sex was with the woman’s consent . . . this is far from being necessarily true and the question must always be whether there was consent to sex with this accused on this occasion and in these circumstances.” (R v. A, 2001) With the 2003 law in place (and with R v. A taken into account) Drew’s conviction would depend upon the consideration of “all the circumstances” surrounding the incident. If the circumstances involving the previous sexual intercourse that had occurred between Drew and Clarice (allowed under R v. A) were similar to the circumstances on this night then Drew would have a powerful argument suggesting that he reasonably though that Clarice was giving consent. The use of the “several one-night stands in the past” (presumably with men other than Drew, would not be permissible as defence evidence due to the provisions of the 1999 Evidence Act. The “circumstances” of this situation show that by the time Drew had got Clarice back to her house, she was only “semi-conscious”. Here section 75 (2) (d) would be of great importance. It states that if the defendant knows that “the complainant was asleep or otherwise unconscious at the time of the relevant act” then the actus reus for rape have been met. Here the difference between “semi-conscious” and “unconscious” would be need to be argued in court. The 2003 law is so new that no foundational case law exists on the somewhat hazy difference between these two states of consciousness. However, the prosecution might effectively argue that Drew, as a reasonable man, should have known that a woman so drunk as to be semi-conscious, could not consent to intercourse. Here the overarching “all the circumstances” of the law could be applied. Similarly, while consent has now been defined within the law (a clear progression from previous Acts) it is unclear at present how juries will define “reasonable”. All in all, it seems that the likelihood of securing a conviction for rape would depend on extra-law factors such as the skills of his barrister, the proclivities of the judge and the various personal beliefs of the jury. While these should not be the deciding factors, in cases as emotive and innately difficult to prove as rape, it is perhaps inevitable that they are. b) Why might Clarice’s attempt to obtain an abortion have been unsuccessful? How does the law characterize women seeking abortion? The facts of the case are somewhat hazy, other than the fact that Clarice did not know she was pregnant until the 22nd week, and that she was unsuccessful in her request for an abortion. Under the Abortion Act of 1967, abortion in England became more restrictive than in many other developed countries, but still widely available. Under the provisions of the Act a woman could receive an abortion up till the if she gained the consent of two doctors who asserted that one of the allowed reasons was present (BtInternet, 2006): A The continuance of the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancy were terminated. B The termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman. C The continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman. D The continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of any existing children of the family of the pregnant woman. E There is a substantial risk that if the child were born it would suffer from physical or mental abnormalities as to be seriously handicapped, or in emergency, certified by the operating practitioners as immediately necessary- F To save the life of the pregnant woman; or G To prevent grave permanent injury to the physical or mental health of the pregnant woman. The Act was amended in 1990 by making the time limit 24 weeks under the grounds of C and D, while A, B and E are without limit. Clarice was within the statutory time-limit, so she must have failed to convince two doctors of that any of the provisions of A-G had been met. The doctors’ reluctance may have stemmed from the fact (assuming that Clarice told them) that she had been raped, and the resulting emotional trauma that she was currently suffering, While reluctance to abort a baby that came as the result of rape seems counter-intuitive, they may have seen her “mental health” as being at more risk of being damaged if she had the abortion and later regretted the act. The fact that a woman needs the permission of two doctors to have an abortion essentially takes the choice away from her and gives it to the doctors. While the “mental health” provisions of the 1967 Act have provided a method for most women to gain abortions who want one (181,600 in 2004)1, the majority of them (88%) occur at under 13 weeks gestation2. At fetus at 22 weeks is very near the cut-off point for an abortion, and this may have been why the doctors refused her request. Women are in many ways treated as the passive receptacle within which the baby grows by English abortion law. Feminist reaction to this ‘passive receptacle’ characterization has been complex. Early feminist legal scholarship perpetuated the idea that there was a dichotomy between women “as passive subjects acted upon by state policies and structure or as political actors with space to articulate feminist claims and influence policy.” (Hoggart, 2005) The woman being controlled by her doctors, and thus unable to make a decision regarding an abortion, is a classic example of a ‘passive subject’. More recent scholarship, such as Misra and Atkins (1998) has suggested that women may in fact be both. Clarice would fit into such a dual identity: she is attempting to get an abortion, not for some ideological crusade, but because she, as an individual human being, wants one. She is thus a passive subject working against the forces of the state. But she also accidentally becomes that “political actor” because of her stance. Feminist thought regarding abortion is resolutely pro-choice (see Coote, (1982), Bouchier (1983), Evans (1997)) and feminists would strongly support Clarice for the secondary reason that she is pregnant because of a rape. While the fetus is not regarded as a human being until birth, the provisions of the law suggest otherwise. The woman must prove that she needs the abortion, rather than requesting it as she might any other elective medical procedure that stems from a clear need. Most women do manage to have an abortion if they want one, but the case of Clarice shows the danger of having a law in place that places a burden of proof upon the woman, and a remarkable degree of discretionary power within the hands of doctors. c) What defenses might Clarice have to the murder charge? What criticisms can be made of the current law? English law has a clear definition of murder: “The killing of another person whether by act or omission having either the intention to kill (with malice aforethought) or to cause grievous bodily harm.” Taken at face value, the fact that Clarice smothered her baby would seem to show a clear case of both actus reus and mens rea. However, there has been a tradition in English law of regarding the killing of an infant by a mother as an exceptional case deserving of exceptional treatment. Thus the various Infanticide Acts would have diminished Clarice’s crime to the level of manslaughter as long as eighty years ago, and current provisions make it so that it is very rare for a mother to receive a custodial sentence under such a situation. The 1922 Act abolished the death penalty for infanticide, making the offence manslaughter if the woman’s mind was unbalanced. The 1938 Act defined cases in which “at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child.” (Infanticide Act, 1938). A woman who has been raped, sought (and refused an abortion) and then had a cesarean birth forced upon her by a Court order, meets the definition of having a “disturbed . . . balance of mind” on numerous counts. The Homicide Act of 1957 provided for a new category of defense called “diminished responsibility”. Clarice would clearly have been under a state of diminished responsibility at the time of the killing of her child due to her unfortunate history outlined above. It seems unlikely that the initial charge of murder would pass first muster by the Crown Prosecution Service. One of the interesting aspects of this whole case is that it revolves around the fact that the law often perceives women as being somehow less “rational” than a man in many different situations. Thus the original rape allegation depends upon a legal system that still, to one degree or another, seems to assume that women have an innate tendency to invent a story of rape. The CPS has to prove that a man did not have a reasonable belief that the woman was consenting, as if women are likely to be so irrational as to place most men in a position in which they cannot tell whether the woman is consenting or not. The decision regarding the abortion creates a situation in which the woman must come to two doctors and ask their “permission” to have an abortion. It points out a discrepancy in the law on two bases. First, if the fetus is not a child until it is born, then why are any conditions placed on an abortion? Second, the woman is seen as likely to suffer from mental problems either because of the pregnancy or, as seems to be the case with Clarice, because of the abortion. The forced Cesarean places the woman once again in an essentially “irrational light” in which she is unable to make medical decisions for either herself or her baby. Normally court-ordered medical procedures are reserved for those who clearly have a permanent diminished responsibility, but this is not the case here. She is the object that needs to be controlled in order for the medical/judicial authorities, who supposedly know what is best for her, to perform their services. Finally, with the case of diminished responsibility within infanticide, the woman seems to actually benefit from the portrayal of her as somehow irrational. Here she is a childlike human being who cannot be held responsible for her actions as a man would be in the same situation. There is no infanticide provision for the fathers of new-born babies. (Infanticide Act, 1938). Some feminists might object to the idea of current infanticide law being anti-woman, but if real gains are to be made in the law’s treatment of women then a transformation has to be made within the legal establishment’s personification of women. If they are portrayed as somehow irrational and therefore less responsible for their actions when committing crime, they are likely to be so portrayed when they are victims of a crime. A study of the Australian law on infanticide (a law that is based on the English model) suggests that “the offence/defence of infanticide may be seen to reflect an anachronistic and paternalistic view of women . . . women are given special treatment by way of a gender-specific law based on a notion that they are naturally susceptible to mental instability as a result of giving birth.” (Dawson, 1993) In order for women to escape from the paternalistic history of law it may necessary to subject them to jurisprudence that treats them more harshly than before. Feminist legal theory would have a fascinating take on the case outlined. One of the most important elements of this theory is that it likes to contrast itself with the “rights and abstract justice” that makes up a ‘male’ view of jurisprudence (and thus the case precedents/law that have made up much of this paper) with the feminist view that likes to reflect “responsibility, contextuality and caring” (Gilligan, 1982) One important feature of this viewpoint is that “feminist analysis begins with the principle that objective reality is a myth” (Scales, 2001). Combining these two outlooks together would provide an interesting prism through which to see the case of Drew and Clarice. A genuine feminist analysis might reflect that the objective reality of the night of the alleged rape does not exist and that reality was in the eye of the beholder. The lateness of the hour, the drinking, the fact that sexual relations had occurred between the two before would cast distinct doubts upon whether Drew could be convicted. However, there is another strain of feminist scholarship that has sought to identify the very tendency of English jurisprudence to view women as somehow less her human beings, not worthy of either the same interest or protections as a man. This argues that there is a “patriarchy . . . it means that men have the bulk of power and have used that power to subordinate women . . .” (Bender, 1994) From this point of view Clarice’s allegation of rape should be taken very seriously, and the following facts of the case all show how she is being ‘objectified’ as if she were less rational, less human than a man. This would include her probably lack of custodial time to be served for killing her baby. Some feminist legal scholarship has acknowledge the importance of women within the lives of others (linked to the ‘caring’ identified by Gilligan). As Robin West suggests, “women are more emphatic to the lives of others because women are physically tied to the lives of others in a way which men are not”. (West, 1999) It is this recognition that makes a case such as Clarice’ so complex and yet so vital to fully explore. The English legal system has only very recently started to treat women (at least theoretically in law) as equal citizens rather than somehow second-class: it has a long way to go before theory become practice. Works Cited Abortion Act, 1967. Bender, Leslie. A Lawyer’s Primer on Feminist Theory and Tort. West Publishing, New York: 1994. Boucher, D. The Feminist Challenge, MacMillan, London: 1983. Coote, A. Sweet Freedom: the Struggle for Women’s Liberation. Pan, London, 1982. Dawson, John. “Partial Defences to Murder: Provocation, Diminished Responsibility and Infanticide.” Digest of Law Reform, August 1993. Evans, M. Introducing Contemporary Feminist Thought. Polity, Oxford: 1997. Gilligan, Carol. In a Different Voice. Harvard University Press, New York: 1982. Harris, LR and Wiss, DJ “Judgments of Consent in Simulated Rape Cases”. Journal of Social Behavior and Personality. 10 (1), 79-90. Homicide Act, 1957 http://www.medicalnewstoday.com/medical news Infanticide Act, 1921 Infanticide Act, 1938 Morgan v DPP (1976) AC 182 Regina v. A, 2001. Sexual Offences Act 2003, Chapter 42 Temkin, J. “Literature Review: Rape and Sexual Assault”. Setting the Boundaries. London, Home Office: 2000. West, Robin. Caring for Justice. New York University Press, New York: 1999. Westmarland, Nicole. “Rape Law Reform in England and Wales” School for Policy Studies Working Paper – Number 7. www.btinternet.com/~DEvans_23/legislat.htm Youth Justice and Criminal Evidence Act, 1999. Read More