The evolution of rape law
Many people think that rapists are sexual psychopaths with perverted thoughts and actions. Research, however, disagrees with this myth. It appears that rapists come from, not only, different backgrounds but are also from different age groups and usually not mentally ill. This myth indicates that we can easily recognise a rapist and that they are different from the people we know and trust and as Wilson observes, the majority of rapists are regular common men and that it is not that they are ‘rapists' but that they have just raped someone as regular common men.
To understand the evolution of rape law, it is imperative to define the law as it stands today. Rape is defined in most jurisdictions as sexual intercourse or another form of a sexual penetration with another person without their consent. It is a statutory offence and is created by (the most recent legislation) Section 1 of the Sexual Offences Act 2003 (the 2003 Act), which came into force on the 1st May 2004. It repealed nearly all of the existing law in relation to sexual offences.
“…[rape] is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent”
The above famous dictum was stated by Sir Matthew Hale (Hale), Lord Chief of the Kings Bench in the eighteenth century. This dictum was a warning against the false rape complainant, which found its way into judicial opinions and special jury instructions.
Hale's dictum was later expanded by John Wigmore (jurist and expert in the law of evidence) in the 19th century, who stated that “where the charge is a rape, the doing of the act being disputed, it is perhaps still theoretically possible that the intent should be in issue; but practically, if the act is proved, there can be no real question as to intent; and therefore the intent principle has no necessary application”
This then brings us onto the Actus Reus (guilty act) and Mens Rea (guilty mind) of rape.
The ‘mens rea' element of rape, which refers to the state of mind of someone who commits a crime, was not always required for liability. However, now, the mens rea of a sexual offence, or its ‘mental element', is a key factor in establishing whether or not a crime has been committed.
The requirement for mens rea was introduced in the Sexual Offences Act 1956 (the 1956 Act), which stated that rape is committed “…at the time he (the person committing the crime) knows that the person (victim) does not consent to the intercourse or is reckless as to whether that person consents to it, this went on to show that the mens rea of rape can be both intent and recklessness. The element of recklessness was established in the case of Cunningham in 1957, where the Court of Appeal held that “malice must not be taken as to mean 'wickedness', but as requiring either (1) an intention to do the particular harm that was done, or (2) reckless as to whether such harm should occur or not. Therefore, the mens rea of rape can be intent or recklessness, i.e. where a person carries out an act despite the risk or harm he foresees.
Rape and its mental element was considered in the case of DPP v Morgan by the House of Lords, in 1976. The victim, Mrs Morgan's husband (Morgan) invited three men, who were strangers, to have sex with his wife (Mrs Morgan). Morgan had, allegedly, told the three men that his wife was ‘kinky' and was likely to resist and say no to sex and that this would mean she was actually saying yes and was only resisting to get ‘turned on'. Morgan denied that he had said this to the three men. All four men had sex with Mrs Morgan by using force and violence against her resistance. The three men claimed that they believed that Mrs Morgan was consenting due to what Morgan had told them prior to inviting them. The jury was directed by the trial Judge who stated that ‘unless their belief was based on reasonable grounds, it could not constitute a defence to rape. The three men were convicted of rape and Morgan was convicted of aiding and abetting. All four men appealed to the Court of Appeal then the House of Lords against their convictions. Here it was held that there could not be a conviction of rape if the man honestly thought that the woman had consented to sexual intercourse with his belief not having to be reasonable. However, the proviso was applied and the convictions were upheld.
After Effects And Public Disapproval Of DPP V Morgan
There was widespread public disapproval of the decision made by the House of Lords in DPP v Morgan, with the decision being hailed as the ‘rapists' charter', which was formally known as the ‘mistaken belief' because it meant that the victim (woman) could actively not be consenting by resisting with struggle and even shouting ‘no', but the man's conviction could still be upheld. In 1976, Mr Jack Ashley, MP in the House of Commons was given leave by an astonishing 228 votes to 17, for the introduction of the Sexual Offences (Amendment) Bill which would require reasonableness where there were claims of mistaken beliefs in consent, in response to which the Government set up a committee (the Heilbron Committee) which was chaired by Mrs Justice Heilbron. The Heilbron Committee considered the decision held by the House of Lords in DPP v Morgan as correct in relation to its principle, that it would not interfere with the genuine issues in a rape trial and neither would it exhilarate juries to accept counterfeit defences brought forward by the defendants, the Heilbron Committee took the view that DPP v Morgan led to misunderstandings which should be cleared up. The Heilbron Committee suggested that a declaration of rape was needed in a statutory form to "Provide the opportunity to clarify the existing law and in particular to bring out the importance of recklessness as a mental element in the crime... such a definition would also emphasise that lack of consent (and not violence) is the crux of the matter". Repeating Professor John Smith's beliefs, they concluded that the suitable and acceptable mens rea for rape was intent and recklessness and to go beyond this ‘would be to extend the definition of a grave crime to include conduct which, however deplorable, does not in justice or common sense justify branding the accused as a guilty man'. Clause 1 of the Sexual Offences (Amendment) Bill reproduced the decision in DPP v Morgan, confirming the mens rea of rape to be recklessness and intent, with Section 1 (1) of the Sexual Offences (Amendment) Act 1976 including the Heilbron Committee's suggestions into the Sexual Offences Act 1956, giving rape a conventional definition, which was a first in almost fifty years. MORE
The actus reus of rape was introduced in the SOA 1956, as unlawful sexual intercourse with a woman. It was only possible for a man to rape a woman, because the specific definition of sexual intercourse to have occurred was ‘penetration of the vagina by a penis'. Therefore, clearly stating that the actus reus of rape was in relation to vaginal intercourse only.
Actus Reus & Consent
Baird highlights that generally in rape cases the defences used are; that intercourse did not take place, that it took place but not by the person accused of committing the rape, that intercourse took place with the victim's consent, or that intercourse took place with the accused believing that the victim was consenting. Baird also highlights that there are not many cases that are ‘whodunnits', i.e. investigatory and also that the defence that sexual intercourse did not even take place is uncommonly used. The defences highlighted by Baird have likely to have become even rare since scientific developments in relation to DNA tests. Consent is an issue, which is focused on in most rape cases, which is why the review of sexual offences was aiming to ‘clarify the law on consent'.
Consent is one of the essential elements of rape. The current legal definition of rape is sexual intercourse which takes place without consent. The law, originally, however, required that for rape to have occurred sexual intercourse was to have been carried out without the victim's consent, whilst which the defendant was required to use or threat with violence or force and the victim resisting the act.
According to the 1956 Act, the offence continued throughout the penetration, meaning that if the victim had consented to begin with and then retracted whilst intercourse was taking place but the man still carried on with the act and failed to withdraw, it is then when rape was committed. The case of R v Kaitamaki reaffirmed what the 1956 Act had stated. In this case the defendant was charged with rape. In his defence, he stated that he thought the woman was consenting when he penetrated her, when he realised she revoked her consent, he did not withdraw. It was held, by the Privy Council, that the actus reus of rape was a continuing act, and when the defendant realised that the woman was not consenting, at this point the mens rea was formed, therefore ‘a man is guilty of rape if he continues intercourse after realising that the woman is no longer consenting'. This led to many questions such as, firstly, in regards to the initial act of penetration, whether it was done with or without consent or fault, the continuity by the man cannot amount to the act of penetration and if the woman withdraws her consent which then changes a consensual conduct to a sexual offence, how early is a man supposed to withdraw before committing a sexual offence?
Non-Existence Of Marital Rape
Sexual intercourse in a marriage without consent was also legal, this was an old rule from 1736 by Hale who stated:
"But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract." Therefore the marriage (contract) was said to be consent in itself.
The SOA 1956 was criticised by many, in relation to how the act did not represent the modern society. Paul boating, Home Office Minister, in 1999, stated that “The laws on sexual offences are generally archaic and riddled with anomalies and that much of the present law dates from 100 years ago when society was very different and today we need to ensure that the law in this area is effective and appropriate to the needs of a modern society."
Rape law has protected the way women's sexuality and interest in bodily autonomy is controlled by husbands, fathers and other males. The law has been in favour of both interests at times, however, infrequent prosecution and the low level of conviction rates has undermined the effectiveness of the law.
There were many cases in the nineteenth century, which made it clear that the lack of consent instead of force was the key element of rape and so sex with a woman who was too drunk or asleep could be classed as rape. Men were not found guilty of rape if they believed that the women had consented, no matter how unreasonable the belief was, this was known as the ‘Morgan Rule' or the ‘Morgan Defence'.
In the late twentieth century there was a rise of the women's movement. Here, the biggest changes to rape law came after over a 100 years of feminist campaigning rape with the inclusion of marital rape in 1991 and male rape in 1994.
Prior to 1994, male rape was non-existent. In the case of R v Gaston, Lord Justice Hooper stated that “It is a felony for a man to rape a woman. Rape required vaginal penetration of a woman. Anal penetration could not constitute rape”, therefore clearly stating that the actus reus of rape was in relation to vaginal intercourse only and in any circumstance, anal rape was not to be considered.
The Criminal Justice and Public Order Act 1994 (CJPOA 1994) introduced and included male rape by section 142 which replaced section 1 of the SOA 1956. It stated that: -
“(1) It is an offence for a man to rape a woman or another man
(2) A man commits rape if:-
a) He has sexual intercourse with a person (whether vaginal or anal) who at the time of intercourse does not consent to it; and
b) 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.”
Abolishment Of The Law On Marital Rape
The law on marital rape being legal was abolished in England and Wales in the early 1990s by statute and court a decision. Rape was defined as “unlawful” sexual intercourse in Section 1(1) of the Sexual Offences (Amendment) Act 1976, with the word ‘unlawful' meaning “outside the bond of marriage”, making rape in a marriage non-existent due to the marriage itself being regarded as consent. However, the defendant in the case of R v R, was found guilty of raping his wife after the trial judge overruled the defence of ‘marital immunity'. The defendant appealed the case on which it was held by Lord Keith that a modern marriage was “A partnership of equals, and no longer one in which a wife must be the subservient chattel of the husband.” The defendant's conviction was upheld with the House of Lords stating that the word “unlawful” no longer had any meaning in the context of rape. The word “unlawful” for the statutory definition of rape was removed in the CJPOA 1994.
Women started being perceived in a different light, people's minds were broadening in regards to how women should be treated, with prosecution being encouraged by statutory restriction of inquiries in relation to the woman's sexual history. Police officers and law enforcement officials were educated to stop women being more traumatised than they already had been by the justice system. In 1994, many important amendments to the legislation were made, one of which was, as mentioned above, the inclusion of marital rape and male rape. Prosecution levels started to increase in relation to non-stranger rape etc. However, because of the issue and law surrounding the area of consent with regards to offences reported to the police, the conviction rates in 2000 went to 25%, whereas in 1985 the rate was 7%. (reference required) This was not a huge increase despite the number of efforts, which were made; one would think that in approximately 15 years there would have been a bigger change/increase than just 18% (approx).
In 1999 the Labour government, elected in 1997, pledged to give justice to victims of sexual offences, by initiating a detailed and lengthy review process, followed by a Sexual Offences Bill and then to the current, Sexual Offences Act 2003 (the 2003 Act), in which the definition of rape as it stands today can be found. The 2003 Act came into force on the 1st May 2004. Section 1 of the 2003 Act defines rape (sexual offence) in the following context: -
(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.
The 2003 Act widened the definition of rape to include oral penetration. It introduced the idea of ‘reasonable steps'. One of the major changes in the law of rape brought by the 2003 Act was the abolition of the ‘Morgan Rule/Defence', which as mentioned earlier, could have been used when a man believed the woman had consented, no matter how unreasonable the belief. The law today to determine a belief to be reasonable or not is done by analysing if any steps were taken by the man to be sure whether or not the women had consented.