The Law Prior to the Sexual Offences Act - Coursework Example

Introduction By the onset of the 21st Century, sexual offences legislation within the jurisdiction of England and Wales saw some fundamental changes. Previously, the primary legislative provisions were contained in the Sexual Offences Act 1956 with some of it derived from implementations dating back to the 19th Century, although several amendments had been introduced which included changes to the law relating to marital rape and male rape laws.1 Despite these amendments the law relating to rape remained confusing since many different references to different legislative provisions had to be made in order to come to some understanding as to where the law stood on a particular element of the crime of rape. The law was viewed by many as containing inappropriate language and discriminatory in nature.2 Many of these difficulties related to the mens rea especially with regard to proving the absence of consent and the common law rule that a mistaken belief that the victim consented could prevail and defeat a claim of rape despite the unreasonableness of the belief.3 The Law prior to the Sexual Offences Act 2003 Prior to the enactment of the Sexual Offences Act 2003 victims had a difficult time proving that there was the absence of consent and the fact that the victims’ sexual history could be introduced through cross-examination did not help matters.4 The result was a low prosecution and conviction rate together with a low reporting rate. A study conducted shows that in 1977 out of every three reported rapes only one resulted in a conviction. By the year 2002 only one out of every twenty reported rapes ended up with a conviction.5 The most obvious difficulty with the law in practice prior to the 2003 Act was the failure of the legislature to adequately provide a definition of the term rape in the Sexual Offences Act 1956.6 The legislature attempted to fill the black hole left by the 1956 Act and introduced the following definition by virtue of the Sexual Offences (Amendment) Act 1976: ‘For the purposes of section 1 of the Sexual Offences Act 1956 (which relates to rape) a man commits rape if -- (a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and (b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it; and references to rape in other enactments (including the following provisions of this Act) shall be construed accordingly.’7 The archaic application of the term ‘unlawful sexual intercourse’ was discriminatory in nature and encapsulated a rather sexist view of the female’s role in society. For instance, a husband could not have unlawful intercourse with his wife. In other words a woman was not at liberty to refuse to consent to sexual intercourse with her husband and could not legitimately substantiate a claim of rape. This tone was set by an early case. In R v Clarence [1888] 22 QBD 23 it was held that ‘the sexual communication between them is by virtue of the irrevocable privilege conferred once for all on the husband at the time of the marriage …’8 In 1991 the common law rule was reviewed and abandoned by the Court of Appeal in R v R [1991] 2 All ER 257. Lord Lane commented on the law relating to the right of the husband to have sexual contact with a wife regardless of her consent. He said that the common law rule no longer remotely represents what is the true position of a wife in present-day society’ and moreover he added that ‘we take the view that the time has now arrived when the law should declare a rapist a rapist subject to the criminal law, irrespective of his relationship with his victim.’9 This position declaring a departure from the archaic and discriminatory nature of rape in relation to married women was upheld by the House of Lords.10 This new concept of marital rape was indorsed by Section 142 of the Criminal Justice and Public Order Act.11 Modifications following the Sexual Offences Act 1956 broadened the class of potential victims to include men and the actus reas was expanded to include both anal and vaginal intercourse.12 However, continuing difficulties with the issue of consent did not improve with these modifications. While it was obvious that changes in the statute addressed the societal changes with respect to the actus reus of rape, the mens rea was clearly lacking and in need of reform. Yet the legislative provisions regarding the actus reus of rape was gender specific and required penile penetration. This in and of itself was discriminative in nature. Moreover, the 1994 Act did not include penetration of the mouth which is described by the home office as horrible, as demeaning and as traumatising as other forms of penile penetration’13 These matters would be addressed by the Sexual offences Act 2003.14 Typically, a defendant charged with rape has and always had three main lines of defence available to him by virtue of the anti-rape legislation. One line of defence is that the intercourse never took place, or that it did but the victim consented to it or that the defendant believed that the victim was consenting.15 It has become very unusual for the defendant to claim that he was not correctly identified or that sexual intercourse never occurred.16 This is perhaps attributable to the new developments with regard to the science of DNA profiling.17 As a result consent appears to be the main issue in rape trials as it goes directly to the essential mental element or the mens rea of rape. The difficulty arises when as is quite frequently the case the victim avers that she did not give her consent and the defendant avers otherwise. Usually they only witnesses to these offences or allegations of these offences are the accuser and the accused.18 The word ‘consent’ was used for the first time in the Sexual Offences (Amendment) Act 1976. Previously the operative word was ‘force’ although the absence of consent could be proved if the victim was asleep when the act took place.19 Sexual intercourse obtained by physical violence or threat of physical violence was sufficient to substantiate a charge of rape, but coercion by virtue of blackmail or some other economical threat was not altogether clear.20 The Sexual Offences Act 2003 Section 74 of the Sexual Offences Act 2003 is said to have dispensed with the previous difficulties arising out of the legislative provisions and the common law with regards to the issue of consent. Section 74 requires that consent is given freely and that the person giving consent has the capacity to do so.21 It is important to note at this juncture that the Sexual Offences Act 2003 introduced a definition of rape. Rape is defined by Section 1(1) of the Sexual Offences Act 2003 as follows:- ‘A person (A) commits an offence if- (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.’22 Section 75 of the Sexual Offences Act 2003 provides that ‘the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.’23 The relevant circumstances referred to Section 75(1) are listed by Section 75(2) of the 2003 Act as follows:- ‘(a) any person was, at the time of the relevant act or immediately before it began using violence against the complainant or causing the complainant to fear that immediate violence would be used against him; (b) any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person…’24 The issue of consent and reasonable belief that consent was given was discussed in the recent case of R v Taran [2006] All ER 173.25 In this case the victim agreed to get into the defendant’s car and what followed was a serious of events that were by and large disputed by the defendant. The victim alleged that the defendant held a gun to her head and forced her to have sex with him. The defendant in turn argued that he reasonably believed that the victim consented and denied using a gun. It was ruled however, that if the jury believed the evidence of the victim they were at liberty to conclude that the issue of consent rose above the level of a mere understanding and that they could conclude that the it was not reasonable in the circumstances for the defendant to assert that he believed that the consent was freely given.26 What is important in the context of the Sexual Offences Act 2003 and its requirements for establishing the absence of consent is that the defendant’s state of mind is relevant. However, the 2003 Act invites a departure from the ‘mistaken belief’ principle27 and now adheres to the ‘reasonable belief’ principle. The belief that the victim consented must be both honest and reasonable. Defending rape becomes a more onerous task now under the Sexual offences Act 2003, especially when one considers that the need for corroboration of a rape complaint has now been abrogated by Section 32 of the Criminal Justice and Public Order Act 1994.28 In the context of the crime of rape itself, corroboration is difficult when there are only two witnesses in a majority of the cases. In any event, supporting evidence such as proof of sexual intercourse, recent complaint, the victim’s demeanor and physical condition will sometimes be viewed by the jury as corroborative.29 Conclusion The Sexual Offences Act 2003 was long overdue, it came at a time when the current law appeared to be ‘antiquated and inappropriate to contemporary sexual behaviour and orientation.’30 The old attitude that a woman’s consent could be implied by reference to her status and behaviour has been replaced by modern attitudes toward human rights and civil liberties. Common law developments sharply reflected the shifting attitude toward the liberalized woman and the statutory reform brought on by the Sexual Offences Act 2003 was inevitable. For instance, in Larter v Castleton [1995] Crim LR 75 the court said that the prosecution could prove whether the victim who was ‘insensible, probably through drink’ resisted or was in no position to decide to consent or resist.31 The new concept of ‘consent’ is calculated to coincide with the demands and changes of modern society. Bibliography Baird, V. (1999) Changes to section 2 of Sexual Offences Act 1976, Medicine, Science and the Law, 39 (3), 198-208 Camplin (1845) 1 Cox CC 311 Criminal Justice and Public Order Act 1994 Home Office Review of Sex Offences (2000a) Setting the Boundaries: Reforming the law on sex offences (Volume 1), London: Home Office Communication Directorate. Kelly, L. (2002) A research review on the reporting, investigation and prosecution of rape cases, London: HM Crown Prosecution Service Inspectorate and HM Inspectorate of Constabulary. Larter v Castleton [1995] Crim LR 75 Lea, S.J., Lanvers, U. and Shaw, S. (2003) Attrition in rape cases; developing a profile and identifying relevant factors, British Journal of Criminology, 43, 583-599. Lees, S. (1996) Carnal Knowledge – Rape on Trial, London: Hamish Hamilton Morgan v DPP [1976] AC 182 Rumney, P.N.S. (2001) The Review of Sex Offences and Rape Law Reform: Another False Dawn? Modern Law Review, 64 (6), 890-910. R v Clarence [1888] 22 QBD 23 R v Olugboja [1982] QB 320 R v R [1991] 2 All ER 257 R v R [1991] 4 All ER 481 R v Taran [2006] All ER 173 Sexual Offences Act 1956. Sexual offences Act 2003 Sexual Offences (Amendment) Act 1976 Smith, L.J.F. (1989) Concerns About Rape, Home Office Research Study No. 106, London: HMSO. Stevenson, Kim. Observations on the Law Relating to Sexual Offences: The Historic Scandal of Women’s Silence. [1999] Web Law Journal of Current Legal Issues. http://webjcli.ncl.ac.uk/1999/issue4/stevenson4.html Viewed March 13, 2007 Temkin, Jennifer Sexual history evidence – beware the backlash’. CLMR [2003] 217 Read More