The Concept of Consent in Relation to Rape- Why Is It So Complex - Case Study Example

THE CONCEPT OF CONSENT IN RELATION TO RAPE- WHY IS IT SO COMPLEX? Introduction ‘They [juries]… don’t understand ..… to be raped …… is not a loving or lustful thing. They don’t understand that rape is like being murdered but still being alive.’1 Many myths and misconceptions about rape are prevalent in the society. Because of the trauma already suffered by the victim, and the likely prospect of further trauma in prosecuting the matter, many cases of rape go unreported. Rape as was understood by the common people was an act of violence perpetrated upon by a vulgar person upon a helpless lady. The perpetrator, driven by lust did not heed the pleas of the victim, and despite her protests, forced her to succumb to his sexual acts. The lady, usually too much afraid to take action or to prosecute the perpetrator, suffered in silence and was punished for her inaction. Or so it was thought. There were cases where the victim gave her consent to the act, and later on for some reason, thought better of it. In many cases, the defendants pleaded that they had consent of the victim for the sexual intercourse. They proved this by preponderance of probabilities. In some cases, the consent was inferred from circumstantial evidence, and in some cases, the previous conduct of the victim with the defendant was considered material. In any event, because of the male domination and attitudes towards the act of rape, victims of rape are often viewed as being party to the act. Of all the aspects of rape, consent is the most controversial. The act of rape itself is so fuzzy that it was only in 1994 that anal penetration was made a penal offence by statute. Oral penetration was made on offence by the Sexual Offences Act 2003. Rape in Common Law Rape in common law was the ravishing of a woman by a man. The reported incidents were so rare that the very complaining by the victim was presumptive of the guilt. The concept of rape was meant to signify that the perpetrator had inserted his penis forcibly in the woman’s vagina. Any other act was “an offence against the modesty” of the victim. Though there are reported cases (this essay cites a case from 1877), the evolution of law relating to consent in rape cases has been very slow. The changes in position of law relating to consent in rape In the Sexual Offences Act 1956 rape was defined as an ‘unlawful sexual intercourse with a woman’. Till the decision of the Court of Appeal in R v R, later confirmed by the House of Lords in appeal2consent for sex in a marriage was presumed to exist. In the Sexual Offences (Amendment) Act 1976 the definition of rape was amended. Now the offence consisted of ‘unlawful sexual intercourse with a woman without her consent’. By providing for the same in the Criminal Justice and Public Order Act 1994, the sexual act without consent in a marriage was made a statutory offence. The Youth Justice and Criminal Evidence Act 1999 restricted the discretion of trial judges to introduce evidence of a complainant’s sexual history or to allow cross examination of the complainant or her witnesses regarding that. 2004 Sexual Offences Act 2003 comes into force which defines rape as penile penetration of the vagina, anus or mouth of another person without their consent; honest but unreasonable belief in consent is now rape. Definition of Rape (1) 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. (2) 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. Landmark judgments ‘Arguments about consent abound just because consent to sexual intercourse extends from passionate enthusiasm to reluctant or bored acquiescence, and its absence includes quiet submission or surrender as well as determined physical resistance against an attacker which might expose the victim to injury, and sometimes death.’ 3 In R v R, the court of Appeal with which the House of Lords concurred heralded the beginning of a new era in the understanding and appreciation of the law regarding rape. That the husband can commit rape if he has sex with his wife without her consent is “ not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.”4 In Kaitamaki5, it was held that penetration was a continuous activity, and continued penetration after withdrawal of consent amounted to rape.At the time of penetration, the defendant thought she was consenting, but upon his realization that she was not, he did not withdraw. The court held that the actus reus of rape was a continuing act, and so when D realised his V did not consent (thus forming the necessary mens rea) the actus reus was still in progress. When can consent be inferred? Presumption of consent In common law, as is said, the lack of consent was to be proved by the prosecution. In the result, it was easy for the defendant to put up the defence that the victim had consented to the act. “In rape cases the accused can allege consent without putting himself at peril.”6 The law continued to evolve after the decision in the Flattery7.In that case, the victim was a patient suffering from fits. She went to the defendant for a permanent cure. But under the pretext of operating upon her, the defendant raped her. It was held that the concept must be for a specific act, otherwise it is not consent and that in this case the consent was obtained by fraud. However, the fraud has to be in relation to the consent and not in a related transaction. In R v Linekar, 8 it was alleged and proved by the prosecution that the defendant had performed a sexual act with the victim, after having promised that he would pay her an amount. Then he had went away without paying her. It was held by the Court of Appeal that “the prostitute here consented to sexual intercourse with the appellant. The reality of that consent is not destroyed by being induced by the appellants false pretence that his intention was to pay the agreed price of £25 for her services. Therefore, he was not guilty of rape” One of the factors affecting the evidence of lack of consent is the absence of proof of lack of consent. Why, the public asks, did not the victim hit back at the defendant, why is it that there is an absence of injury marks on her body. The most probable answer to this question that the victim was too frightened does not offer itself as attractive. This becomes all the more confusing as the defence that the victim consented came with the advantage that the prosecution had to prove otherwise. But the Sexual Offences Act, 2003 provides for this. 74 “Consent” For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice. 75 Evidential presumptions about consent (1) If in proceedings for an offence to which this section applies it is proved— (a) that the defendant did the relevant act, (b) that any of the circumstances specified in subsection (2) existed, and (c) that the defendant knew that those circumstances existed, 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. (2) The circumstances are that— (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; (c) the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act; (d) the complainant was asleep or otherwise unconscious at the time of the relevant act; (e) because of the complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented; (f) any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act. (3) In subsection (2)(a) and (b), the reference to the time immediately before the relevant act began is, in the case of an act which is one of a continuous series of sexual activities, a reference to the time immediately before the first sexual activity began. 76 Conclusive presumptions about consent (1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed— (a) that the complainant did not consent to the relevant act, and (b) that the defendant did not believe that the complainant consented to the relevant act. (2) The circumstances are that— (a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act; (b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant. Consent in marriage – when is consent withdrawn Consent is an important factor in sex. A simple act of sexual intercourse may turn out to be an occasion which radically changes the lives of to persons, the victim and the assailant. Sex is of no concern to law. But the lack of consent in sex may lead to the allegation of rape. Unfortunately, what consent means is not understood by the police. The concept of consent is yet evolving. It has multiple dimensions. One of the most pertinent questions is whether the consentor has capacity to consent. Age is a factor, but there are express provisions regarding that. But the other capacities like mental aptitude, sobriety and awareness of the consequences of leading acts are also to be gauged. There has also been a case where the victim was asleep at the time of her rape. There are cases where the victim may have given her consent but does not remember it the day after, and alleges that she was raped. Thus, consent can be a mental state apparent on a womans face. A reasonable person may deduce consent from gestures, a wise person will expressly ask if the other one consents to the sexual intercourse. There is another question to be addressed. Is there a difference between lack of consent and actual resistance to the act? It is now accepted that consent is a matter of evidence, and the courts are now better equipped to deal with the question because of changes in the law. The lack of consent is the most important ingredient of the offence of rape. Till recently, the prosecution had to prove that the prosecutrix did not consent to the act. Because of this, it was open for the defendant to bring on record the conduct of the victim. The evidence of the victim was likely to be discredited by eliciting admissions from her regarding her sexual experience etc. Lack of consent is hard to prove, as typically there are no witnesses to the offence. At the same time, the defence of consent is a matter of conjecture- what was the likelihood in the circumstances given, of the victim consenting to the act first and then charging the defendant with rape? In R v Khan9,the Court of Appeal was concerned with the question as to the appellants’ belief that the victim consented to their acts of attempted sex. The victim went to a discotheque with one of the appellants and was thereafter driven around by 4 persons including him after which the appellants rubbed their erect penises against her vagina. Penetration was not achieved. It was held by the Court of Appeal that the offence of rape consists of doing something in furtherance of a motivation (mens rea) with intent to have sexual intercourse with a woman in circumstances where she does not consent and the defendant knows or could not care less about her absence of consent. In the circumstances as above and with so many complications in the understanding of the concept, it is now wonder that the concept of consent in rape cases is the most difficult to analyse. Bibliography Legislation The Sexual offences Act, 1956 The Sexual Offences (Amendment) Act 1976 The Sexual Offences Act 2003 The Criminal Justice and Prevention of Offences Act 2004 Case law R v R ([1991] 2 All ER 257 R v Bree[ 2007] EWCA Crim 256 R v Flattery (1877) 11 Q. B. D. 410 Kaitamaki[11984] All E R 435 R v Linekar [1995] 3 All ER 69 R v Khan et al[1990] 2 All ER 783 Other resources R v Bree Court of Appeal Criminal Division, Published May 7, 2007 http://business.timesonline.co.uk/tol/business/law/reports/article1755931.ece accessed on April 8, 2010 The Stern Review A report by Baroness Vivien Stern CBE Of an independent review into how rape complaints are handled by Public Authorities in England and Wales Read More