Should Force or Consent Comprise the Essential Elements of Rape - Research Paper Example

Should Force or Consent Comprise the Essential Elements of Rape? Introduction Under the laws of England and Wales, the absence of consent is one of the most essential elements necessary for establishing the offence of rape.1 Swedish law however, takes the issue of consent a step further by requiring an additional element of force. Under Swedish law, rape is substantiated by factual evidence not only proving a lack of consent, but also the use of or the threat of violence or that the victim was in some way rendered defenceless.2 According to the European Court of Human Rights, such a criteria calls for forensic or physical corroboration and can be an obstacle in obtaining a rape conviction.3 The problem is illustrated by the low rate of the prosecution, conviction and investigation of rape complaints in Sweden. Amnesty International reports that very few allegations of rape are prosecuted in Sweden and a majority of these complaints are closed by investigators who generally claim that there is no proof that the crime has been committed.4 In fact the United Nations5 and the European Commission expressed concerns about the low rate of rape prosecutions in Sweden.6 This paper argues that the legal definition of rape under Swedish law with the emphasis on force rather than the mere absence of consent, compromises the successful investigation, conviction and prosecution of rape. This is rather unfortunate since rape is already a sensitive area of law that victims have difficulties reporting and prosecuting.7 In this regard, the issue of consent will be examined by reference to English rape laws and comparisons will be made to the force element in Swedish rape laws. It will also be necessary to examine the implications for statutory rape and again comparisons will be made between Swedish laws and English laws. A. The Definition of Rape At the heart of any rape claim or incident is the question of definition. In other words, the word rape automatically engages inquiries into what “constitutes rape”, and who “should make that determination.”8 Most jurisdictions favour penetration of specific body parts in the absence of consent.9 England and Wales for instance, rape can be committed in a number of different ways in the absence of consent.10 Swedish rape laws, defines rape in such a way that while rape can be committed in different ways in the absent of consent, much depends on the degree of force used in the commission of the offence.11 The definitions of rape and the consequences for the investigation and prosecution of rape in both England and Wales and Sweden are discussed in this section. 1. The Legal Definition of Rape under Swedish Law The European Court of Human Rights commented on the issue of force as opposed to consent within the legal framework of many European jurisdictions. The court held that although many European legislative provisions import the use of force into its definition of rape, legal theory commands that the absence of consent and not the use of force remains at the heart of the definition of rape.12 These comments likely spurred the implementation of the Sexual Crimes Act 2005 which had been placed before the Swedish Parliament since 1998.13 In this regard, the Sexual Crimes Act 2005 purports to have as its aim the improvement of “protection against sexual violations” and to “further enhance sexual integrity and the right of self-determination.”14 i. The Sexual Crimes Act 2005 Be that as it may, the improvement of protection does not abrogate proof of force. Instead the 2005 Act creates a number of other sexual offences including sexual coercion, sexual exploitation, child rape, sexual violation of a child, incest, sexual harassment and a number of other sexual offences.15 As for the new rape provisions, the definition of rape was broadened so as to include the new and varied offences and a redefinition of the criteria for force. The definition of rape is gender neutral and goes beyond vaginal penetration and includes oral as well as anal penetration. The 2005 Act continues to rely on force despite the ruling by the European Court of Human Rights in the Case of M.C. Vs Bulgaria. Section 1 of the Sexual Crimes Act 2005 provides as follows: A person who by assault or otherwise by violence or by threat of a criminal act forces another person to have sexual intercourse or to undertake or endure another sexual act that, having regard to the nature of the violation and the circumstances in general, is comparable to sexual intercourse, shall be sentenced for rape…16 ii. Chapter 6 of the Swedish Penal Code Force does not always have to include actual violence or the eminent threat of violence. However this is only applicable in cases where a victim is rendered incapable of resisting and giving consent. For instance Chapter 6, Section 1 of the Swedish Penal Code provides that any person who takes advantage of another who is in a defenseless or helpless state either as a result of sleep or unconsciousness, intoxication or influenced by drugs by having sexual intercourse with that person will be said to have forced that person to have intercourse without his or her consent.17 This part of the Swedish definition of rape mirrors the concept of the absence of consent ideology but insists upon regarding the act of exploitation as a form of force. This is no more than a manifestation of the Swedish reliance on the concept of force as a compliment to the lack of consent. Use of terms such as defenseless and unconsciousness infer that the emphasis remains on resisting and force. In other words, if the victim is in an altered state and is unable to resist, then the force/consent elements of rape will be substantiated. However, the altered state must be a natural consequence of the alcoholic or drug consumption.18 Likewise, the requirement of defenseless and a state of unconsciousness may be wide enough to cover the case of a victim who is mentally or physically disabled. Such a person could conceivably be in a position that they cannot give or deny consent. Therefore the question of force is trumped by the question of competence to give consent or to resist sexual advances.19 In other words, unless it can be shown that the victim was so inhibited by mental or physical injury or impairment that they could not consent and/or resist, the force requirement will remain a necessary element of rape in Sweden. iii. Statutory Rape Force however, is removed from the definition of statutory rape which covers the incidents of sexual intercourse with a child. For the purposes of Swedish rape law, a child is anyone under the age of 15.20 Sexual intercourse with a child under the age of 15 is rape and it is not necessary for the prosecution to prove force of any kind. In this regard the previous requirement of force has been removed from the incidents of child rape, although adults remain bound by this requirement.21 In this regard, where the degree of violence or force used or the actual sexual conduct is not regarded as serious, it will not meet the legal definition of rape and can instead be prosecuted as sexual coercion instead.22 iv. Observations/Commentary The new rape laws do not improve upon the previous provisions with relations to adult victims of rape. There is always a danger that an adult who is not subjected to violence but gives into sexual intercourse against his or her will, cannot be the subject of a successful rape complaint. This requirement of coercion in the form of violence fails to address the issue of autonomy in a way that the absence of consent alone does. To start with, victims of sexual violence react in vastly different ways. Some victims are predisposed to surrender without a fight, thereby making it possible for the assailant to carry out the rape without the use of force of any kind.23 Yet such a victim is not characterized as a rape victim under the application and definition of rape under Swedish law. The requirement of force can also fail the victim of date rape drugs who will invariably not offer any resistance and would likewise not invoke violence or physical force. Even where a victim puts up resistance there is no certainty that the Swedish courts will interpret such resistance as responsive to force. In the famous Malmo case, the Swedish court acquitted two men accused of rape explaining that the victim’s resistance: May have been experienced by A and S as “becoming” and as the “conventional resistance that takes place during the initial stages of sex. Therefore the men did not take her resistance seriously…Even if it can be said that A and S exercised some amount of violence during the initial states of the sexual act, it cannot be said to have been sufficiently proven that they did this with the intention of forcing her into the act.24 Despite the implementation of the Sexual Crimes Act 2005, it is unlikely that such a position will make any more than a marginal difference in Swedish rape trials. The new Act does not change the definition of rape in principle, nor does it remove the criteria for force. It merely makes it possible for sexual offences that do not involve force to be prosecuted as less serious sexual offences. In this regard, the actual elements of rape remain essentially the same as they did when the Malmo case was prosecuted and decided. Eman therefore adequately explains the consequences for judicial temperament in response to the incorporation of force into the definition of rape. 2. The Legal Definition of Rape Under the Law of England and Wales i. Sexual Offences Act 2003 Rape as defined by Section 1 of the Sexual Offences Act 2003 is gender specific in that it can only be committed by penetration of the penis. More importantly perhaps, is the fact that Section 1 requires the absence of consent only and provides for a subjective approach to determining whether or not consent was absent. Section 1(1) defines rape 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.25 Section 1(2) of the Sexual Offences Act 2003 goes on to clarify that whether or not A reasonably believes that B consents will depend on all the circumstances and the steps that A took to verify that B was indeed consenting.26 Unlike the Swedish statute, the English statute anticipates and accommodates those situations where the victim may suffer from immobility by virtue of fear or intoxication. To this end Section 74 specifically provides that: For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.27 It therefore follows from Section 74 that a person who is paralyzed by fear or intoxication or has a mental or physical disability will not be in a position to freely give consent. In this regard, consent takes on a far more practical meaning. Section 75 raises a number of rebuttable presumptions about the issue of consent. In other words, unless there is evidence to the contrary the complainant will be taken to have not given his or her consent in certain circumstances. The circumstances include the use of violence, the use of threats or violence, fear that violence would be used, “the complainant was unlawfully detained”, “the complainant was asleep or otherwise unconscious”, the complainant was disabled so that he or she could not communicate consent or the complainant was intoxicated without his or her consent.28 ii. Statutory Rape Sexual intercourse with a child under the age of 13 constitutes statutory rape under the laws of England and Wales.29 As with Swedish law, statutory rape dispenses with the issue of consent and force. All that is necessary is proof that the child in question was under the age of 13 under English law, and under the age of 15 under Swedish law. What distinguishes the Swedish definition of rape from the English definition of rape is the former’s emphasis on the use of force with respect to adult rape. The English rape laws as whole define rape is such a way that the substantive law is essentially the same for adults and children since both rely intensely on the issue of consent. Of the three essential elements of rape under English law, two relate to consent. These elements are, penetration, absence of consent and the absence of a reasonable belief on the defendant’s part that there was consent.30 iii. The Concept Issue The issue of consent and the defendant’s reasonable belief was considered in the case of R v Taran [2006] All ER 173. In this case the victim alleged that she had not consented to sexual intercourse with the defendant and that she only submitted to his advances because he had a gun. The defendant however, denied using a gun and claimed that he was of the opinion that the complainant had given her consent. It was ruled however, that if the jury believed the complainant’s version of the facts, they could conclude what transpired was not tantamount to a mere misunderstanding as claimed by the defendant. In other words the jury was at liberty to conclude, that it was unreasonable for the defendant to believe that the complainant freely consented to sexual intercourse while he used a gun.31 iv. Observations/Commentary There is an obvious difference between the definition of rape in England and Wales and in Sweden. The difference lies in the criteria of force in Sweden and the criteria for the absence of consent in England and Wales. The force criteria essentially defines rape as forced sexual intercourse.32 By implication the use of or threat of violence will necessarily be proven by some resistance to the assailant. As previously noted, this can be an unrealistic expectation of a victim who is paralyzed by fear during the rape. The lack of consent criteria takes into account a number of circumstances and factor that render the victim powerless to or unwilling to resist. B. Is Force or Consent a Realistic Approach to Rape? Thus far it has been established that the rape laws of Sweden and those of England and Wales represent the position of modern rape jurisprudence. This jurisprudence can be described as largely relying on the issue of consent as in England and Wales or, as in the case of Sweden, relying on the additional criterion for force.33 Amnesty international argues that critics of Sweden’s continuing criterion of force is suggestive of archaic notions of the ascribed role of women. The law itself tends to suggest that women are “available” and unless and until they demonstrate clear resistance, they are taken to be consenting to the sexual intercourse.34 Whether or not this is an accurate assessment of Sweden’s force requirement, it is obvious that requiring proof of force leaves open the possibility that many rape victims will be denied protection. This possibility alone makes the strongest argument for consent over force in terms of defining the elements of rape. The recent decision by the Hogsta Domstolen, the Supreme Court of Sweden ensures that the force criterion will continue to be an obstacle to many rape victims who do not resist unwanted sexual advances in Sweden. In quashing two rape convictions in July 2009, the Swedish Supreme Court ruled that the testimony of the victim alone should not be enough to convict an accused person of rape.35 The Swedish Supreme Court went on to maintain that in the victim’s testimony should not be accorded more weight than the testimony of the accused, if there is no other evidence to corroborate either of the parties’ evidence.36 In one case the victim claimed to have been held at knifepoint and forced to have sexual intercourse with the alleged rapist in an apartment occupied by the latter’s friend. The incident took place in the bathroom while the friend who occupied the apartment slept. The fact that he claims not to have heard or seen anything should not have been important evidence since he was asleep. In any event, the court was of the opinion that the testimony of the victim was not capable of establishing forced intercourse.37 In the second case the testimony of both the complainant and the alleged rapist was likewise inconsistent. The court came to the conclusion that in the absence of independent evidence of force it was not proven beyond a reasonable doubt that the alleged rapist had forced himself on the complainant in a violent manner. The court came to this conclusion because there was no evidence capable of illustrating that violence had been used.38 It is obvious from these decisions by Sweden’s highest courts that rape will only be upheld and successfully prosecuted if there is physical evidence of force. This approach ignores the violation that rape itself entails. The force criteria renders the criteria for illustrating a lack of consent virtually null and void. This is because, by requiring proof of force, Swedish courts align submission and acquiescence with consent. There are many reasons, other than agreement that lead individuals to submit or acquiesce to a particular demand. It does not automatically mean that there is consensus. As Westen explains, the legal definition of consent is used to distinguish consent from “mere acquiescence or submission.”39 In all instances, the use of consent in legal nuance is a question of fact and it typically engages consideration of the state of mind of the victim as well as that of the defendant. As Westen explains, factual consent requires an exploration of perceptions.40 In other words, the question is whether or not the complainant did not consent to the sexual intercourse and whether or not his or her lack of consent was communicated to the defendant. From the defendant’s perceptive, the lack of consent may be obvious from a number of facts and circumstances that have nothing to do with physical resistance. For instance, a mentally handicapped victim may not have the capacity to consent to or to refuse to consent to sexual intercourse. Likewise, a victim paralyzed by fear may not have the presence of mind to consent to or refuse to consent to sexual intercourse. In this regard, these somewhat passive participants are submitting or acquiescing rather than consenting. A similar criteria would apply to a minor below the age of consent. In such circumstances it would be entirely unreasonable for the defendant to claim that he perceived consent. Likewise, a defendant who lures a victim into participating in sexual intercourse at gun point can hardly claim that he reasonably believed that the victim was giving his or her consent to the sexual intercourse. At the end of the day, the consent criteria recognizes that sexual intercourse should be voluntarily consensual.41 This criteria is just as relevant to a child below the age of consent who is unable to consent to sexual intercourse as it is to an adult who is zapped of his or her free will.42 Ultimately, the consent criteria recognizes that fraud, force and competence can impact the victim’s ability to freely consent or to refuse to consent to a criminal violation.43 When the lack of consent is required to be accompanied by evidence of force, it ignores the possibility that consent can be obtained by virtue of other means of duress. The fact that the duress is not physical in nature does not validate or invalidate the consent or the refusal to consent. In other words, the mere anticipation of rape can zap the victim of the will to freely express his or her opposition to the conduct. As previously noted, the perpetrator will not typically use force if the victim does not physically resist his advances. In such circumstances, the victim’s participation is no more valid than that of the victim who physically resists and is physically subdued. It is unfortunate that the Swedish Supreme Court has taken the position that unless there is physical evidence of force, the testimony of the complainant will not be sufficient to secure a rape conviction. A sexual predator, aware of this high standard of proof can ensure that he obtains the victim’s submission without the use of physical force with the result that he does not have to face criminal consequences. Similarly, the victim of rape in jurisdictions that rely on evidence of force to substantiate the absence of consent will naturally shy away from reporting incidents of rape. Essentially what this means is that consent together with force is in danger of perpetuating a lawless society with respect to rape. Unfortunately, the rules of evidence and procedure in Sweden ensure that unless a victim (other than a child under the age of 15) resists the perpetrator, it is impossible to prove lack of consent. C. Rape Reporting and Prosecuting Statistics in Sweden The force criteria has unpleasant consequences for the prosecutorial process and this is reflected in the rape statistics in Sweden. According to Amnesty International a number of studies indicate that only between 5 and 10 percent of all sexual offences are reported in Sweden.44 As a result of surveys conducted by the National Safety and Security Survey in 2006, it was estimated that 30,000 rapes occurred in Sweden in 2006 and based on the 10 percent reporting ratio, only 3000 of those rapes were reported.45 While it is impossible to state with any degree of accuracy the actual percentage of rapes committed and reported, it is clear that a vast majority of rape cases remain unreported in Sweden. There are a number of reasons why victims of rape refuse to report the crime. Amnesty International summarizes the reasons as follows: The victim is unable to define the incident as rape. The victim suffers a measure of guilt or is generally ashamed. The victim’s knowledge of the justice system and related agencies is sparse. The victim’s environment or personal attitudes are not conducive to reporting the rape. Apprehensions about negative publicity. Little or no support systems. Lack of confidence in the criminal justice system’s ability to effectively investigate and prosecute the complaint. General lack of confidence in the authorities.46 It is easy to imagine how the force criteria might contribute to each of these factors that impact the frequency with which rapes are reported in Sweden. The first contributing factor is hardly surprising. If the criterion for rape is corroborative force evidencing a lack of consent, rape victims will rarely feel they can meet the legal criteria if they do not exhibit physical injuries. Inevitably, they will have a difficult time defining the incident, feeling inhibited by the legal criteria. In cases where the putative complainant cannot corroborate the incident as dictated by law, there is bound to be an element of shame and guilt since the law regards a lack of resistance in the face of a lack of physical coercion as tantamount to consent. The complexity of combining the absence of consent with force will likewise contribute to the victim’s lack of confidence in the authorities and the criminal justice system. It is hardly surprising that victims of rape are hesitant with respect to reporting rape. Ultimately, the majority of rapes are never reported in Sweden and even fewer are prosecuted. Since the passage of the Sexual Crimes Act 2005 the number of reported cases increased slightly in Stockholm County, however, the number of cases prosecuted dropped.47 The statistics reveal an alarming disparity in the number of cases reported and the number of cases actually prosecuted. The Sexual Crimes Act 2005 also created a number of different scenarios that might amount to either rape or other sexual offences. In this regard, victims may be confused about what constitutes rape or what constitutes another sexual offence. The result is the prosecutorial process may have become inundated with reports and the onerous task of determining under which offence to file and investigate these complaints. In 2006 3,074 rapes alleging assaults against persons older than 25 were reported to officials. However, only 2,260 of those cases actually saw some prosecutorial investigations and processing. Ultimately around 78 percent of those 2,260 cases were eventually closed by the prosecutor.48 The most commonly cited reason for closing the cases was “crime not proven.”49 It therefore follows that not only are victims struggling with the concept of absence of consent combined with proof of force, the prosecutorial process is also having its difficulties with the criterion. In a study conducted by the National Council for Crime Prevention the number of rape complaints rose slightly in 2007 over the previous year. However, the number of prosecutions declined slightly in 2007 when compared to 2006. According to the National Council’s report, 3,074 rapes were reported against persons over the age of 15 in 2006 compared to 3, 535 in 2007. Even so, 456 cases were prosecuted to conclusion in 2006 compared to 449 in 2007. Out of the 456 cases prosecuted in 2006, 227 resulted in convictions and 216 resulted in convictions in 2007.50 D. Rape Reporting and Prosecution Statistics in England Be that as it may, the reasons for the low reporting, prosecuting and conviction of rape complaints are complex. No one factor is responsible. England, which relies on the absence of consent, has a dismal reporting, prosecuting and conviction rate in a number of its criminal districts.51 Even so, some districts have reported increases in the rape conviction rates over the last couple of years. For instance, the Cleveland police district showed a steady improvement in rape convictions from 7.75 percent in 2004 to 18 percent in 2007.52 The Crown Prosecution Service in South Yorkshire reported an increase in rape convictions in 2008 from 58 percent to 69 percent.53 Between 2006 and 2007, 16 of the 42 police districts in England and Wales saw slight decreases in the rape conviction rates while all others saw increases in varying degrees.54 It is not possible to read anything of value into the statistics coming out of England and Wales. Each police district is subject to the same laws and it is obviously not the issue of proving the absence of consent that contributes to the either the decline and increase in rape convictions. The only logical conclusion is that the conviction rates are related to district resources and priorities with respect to investigating and prosecuting crimes. One thing is certain the standard of proof does not help but rather only adds to the difficulties associated with reporting, prosecuting and convicting rape complaints. This is evidenced by the consistent decline in rape reporting, prosecuting and convictions in Sweden. Conclusion Taking Sweden as an example of the consequences of insisting upon proof of force in prosecuting rape complaints, the criterion of force compromises the ability to successfully control and regulate the incidents of rape in a civilized and modern society. It is entirely unfortunate that victims of rape who are either under duress, unconscious, incompetent or incapacitated are denied retributive justice merely because they either could not or would not resist their assailant’s advances. The absence of consent recognizes that right of self-determination. In this regard, violation of the right to self-determination can be violated by merely refusing to acknowledge or adhere to the wishes of another in that regard. Insisting that the absence of consent be accompanied by proof of force, implies little respect for autonomy and self-determination. It suggests that unless something is forcibly taken from the individual, it is taken with his or her consent. Consider the case of a gun man who approaches a driver and demands possession of his vehicle. The driver does not put up a fight and hands up his vehicle. At the trial, the gunman denies having possession of a gun and the driver has no evidence to support his claim that a gun was used, outside of his testimony. Would it not be incredulous to contend that in the absence of proof of force, the driver is taken to have consented to giving his vehicle to the gunman? The law of theft which is based on consent does not require proof of force. The same criterion should apply to rape cases and perhaps even more so because it involves an offence against the body of another rather than the property of another. Bibliography Abarbanel, G. ‘Rape and Resistance’. (1986) 1 Journal of Interpersonal Violence, 100-105. Amnesty International. ‘Case Closed: Rape and Human Rights in the Nordic Countries.’ (2009) The Danish, Swedish, Finnish and Norwegian Sections of Amnesty International. Case of M.C. Vs Bulgaria (application no. 38272/98) Judgment 04/04/2004. Council of Europe. ‘Concluding observations of the Committee on the Elimination of Discrimination against Women:Sweden’. CEDAW /C/SWE/CO/7. Cowling, M. and Reynolds, P. Making Sense of Sexual Consent. (Ashgate Publishing Limited, 2004). CPS South Yorkshire. ‘Rape and Domestic Violence Conviction Rates Are up.’ (Dec. 15, 2008) CPS South Yorkshire News Press Releases. http://www.cps.gov.uk/south_yorkshire/cps_south_yorkshire_news/press_releases/rape_and_domestic_violence_conviction_rates_are_up/ Retrieved September 29, 2009. Elman, R. Sexual Subordination and State Intervention: Comparing Sweden and the United States. (Berghaqhn Books, 1996). Erturk, Y. ‘Report of the Special Rapporteur on violence against women, its causes and consequences, Mission to Sweden.’(6 February 2007) UN Human Rights Commission A/HRC/4/34/Add.3. Fletcher, M; Loof, R. and Gilmore, B. EU Criminal Law and Justice. (Edward Elgar Publishing Limited, 2008). Hirschel, D.; Wakefield, W. and Sasse, S. Criminal Justice in England and the United States (Jones and Bartlett Publishers, 2008). Krug, E. World Report on Violence and Health. (World Health Organization, 2002). Laiou, A. Consent and Coercion to Sex and Marriage in Ancient and Medieval Societies. (Dumbarton Oaks, 1993). Leander, K. ‘Reflections on Sweden’s Measures against Men’s Violence against Women.’ (2006) 5(1) Social Policy and Society, 115-125. NJA 1997. NJA 2008. Raitt, F. Implicit Relation of Psychology and Law.(Routledge, 2000). R v Taran [2006] All ER 173. Sexual Crimes Act 2005 (Sweden). Sexual Offences Act 2003. South Essex Rape and Incest Crisis Centre. ‘Rape Conviction Rates in England and Wales.’ (2007) http://www.thurrock-community.org.uk/sericc//conviction_rates_2007.htm Retrieved September 28, 2009. Supreme Court in Landmark Rape Rulings (July, 3 2009) http://www.thelocal.se/20448/20090703/ Retrieved September 29, 2009. Tadros, V. ‘Rape Without Consent.’ (2006) 26(3) Oxford Journal of Legal Studies, 515-543. Wergens, A. ‘The Role and Standing Of The Victim in the Face of Criminal Procedure Sweden.’ (2002) 73 International Review of Penal Law, 259-300. Westen, P. The Logic of Consent: The Diversity and Deceptiveness of Consent as Defense to Criminal Conduct. (Ashgate Publishing, 2004). Read More