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A historical summary and analysis of rape law
Rape is an unfortunate occurrence that has bedevilled legal systems and it is the most serious sexual offence in English criminal law. It is essentially reflective of the male-centrism of society. Historically, the offence of rape was concerned particularly with the “theft of virginity, abduction, and forced marriage” (Temkin, 2002: 57). Unfortunately, it is a notorious fact that the gravity of the seriousness of the offence of rape is one that is not reflected in conviction rates and statistics and also very importantly, the complaint rates and statistics of rape victims is also not reflective of the seriousness and frequency of the offence. To this end, therefore, this essay will consider the evolution of the law on rape, with particular focus on the relevant legislation (Sexual Offences Act 2003 and the Youth Justice and Criminal Evidence Act 1999) as well as prosecution practices with a view to analysing how these legislations and practices impact on the complaint and conviction rates and statistics. For a proper analysis of the Sexual Offences Act (SOA) 2003 reforming the law on rape, the position of the law prior to the reformation must be considered with a view to providing the background for an adequate analysis of the Act of 2003 and the extent of its effectiveness in reforming the law.
LEGAL REFORM OF THE LAW
The reform of the law on rape began with the enactment by Parliament of the United Kingdom of the Sexual Offences Act 1956 which defined the offence of rape to contain as its constituent elements the fact that there had to be sexual intercourse with a woman which was unlawful and which took place without her consent, knowingly or recklessly (Temkin, 2002: 55). However this position was changed by Section 142 of the Criminal Justice and Public Order Act (CJPOA) 1994 which made fundamental changes to the law (Loizidou, 1999: 287) by providing that rape could be committed on a woman or a man (Clarkson and Keating, 2003: 608). Essentially the law, i.e. section142 of the CJPOA is “gender-neutral”, thereby widening the scope of the victims of rape to include both woman and men. The said section also removes the provision of unlawfulness, thereby including marital rape within its scope and also includes not only vaginal intercourse but also anal intercourse within its remit (Ashworth, 1999: 351).
This development in the law came in the wake of the House of Lords decision in R vs. R ( 4 All ER 481) concerning the issue of marital rape. In that case, the defendant was found to be guilty of attempted rape of his wife. Upon his appeal to the Court of Appeal, his finding of guilt was upheld and Lord Lane, LCJ asserted that the position that a wife could be the victim of marital rape by her husband “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” (p.266). Essentially this put paid to the old law that there could be no marital rape in view of the contractual nature of marriage. This decision was upheld by the House of Lords and re-affirmed in Strasbourg by the European Court of Human Rights, despite criticisms of the decision by the Court of Appeal which it was argued would have “serious constitutional implications” because the decision was tantamount to judicial legislation by the judge who had usurped the legislative powers of Parliament, which was a result a violation of the cardinal rule of nullum crimen sine lege, nullum poena sine lege about retrospective law-making (Temkin, 2002: 86). After the decision o the House of Lords in R vs. R, the Law Commission recommended that there be a statutory abolition of the exemption of marital rape from the application of the rule on rape with regard to consent (Ashworth, 1999: 353).
Having said this however, the law on rape still proved to be of inadequate protection. In 2000, a review of the law on sex offences was published by the UK Home Office titled, ‘Setting the Boundaries: Reforming the Law on Sex Offences’. This review essentially recommended a further re-definition of the offences of rape and sexual assault and this culminated in the Sexual Offences Act of 2003.
The re-definition of rape by the SOA 2003 is provided for in Section 1 which is to the effect that,
(1) A person (A) commits and 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.
(3) Sections 75 and 76 apply to an offence under this section.”
Section 74 of the SOA 2003 provides a new definition of consent and Sections 75 and 76 are with regard to the evidential presumptions about consent and belief in consent, it is important to note that Section 75 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.”
AN ANALYSIS OF THE SEXUAL OFFENCES ACT 2003
Under the reform as evidenced in the CJA 2003, the definition of rape has been criticized as being controversial because the offence excludes a situation where the penetration was achieved with other objects, rather than the penis. However, very importantly, the Act extended its remit in cases of forced oral sex which was not present in the old law. (Lacey, Wells and Quick, 2003: 484). Therefore, the Act is to be regarded as progressive in this regard. This widening of the scope of the offence of rape through a re-definition of the offence is a laudable effort and would have implications for the prosecution of the offence of rape. This is because, theoretically speaking at least, it would lead to an increase in the number of complaints and cases that would be brought against persons alleged to have committed rape.
Importantly, the Act in section 79 (2) has had a codifying effect with regard to judicial decisions on the duration of the actus reus of the offence of rape that if at anytime during sexual intercourse that consent which had been given prior to the sexual act is retracted that the person accused of rape is to withdraw and cease the sexual act. This principle of law was relied on in the cases of Kaitamaki v R ( 2 All ER 435) and in Cooper and Schaub ((1994) Crim LR 531).
Unfortunately, a criticism could be raised against the SOA 2003 regarding its silence as to what constitutes penetration. In the absence of a clear provision on this matter, one could assume that this only serves to complicate matters in rape proceedings which could invariably add to the problems of low complaint and conviction rates. However, this is not necessarily the case as the common law position that the slightest degree of penetration would amount to rape is still obtainable. This is especially so in view of the fact that section 79(9) defines ‘vagina’ to include the vulva (Allen and Cooper, 2006: 670).
The issue of consent is the crux of the matter where the offence of rape is in issue. According to Lacey, Wells and Quick, “the legal construction of the wrong of rape hinges on lack of consent…the concept of consent is problematic, and these difficulties are reflected in the trial process” (2003: 484). While the CJA 2003 has made important provisions regarding consent, including providing for reasonable belief in consent as well as evidential and conclusive presumptions about consent. In the twilight of legal reform on rape, prior to the enactment of the SOA 2003, the Home Office in its Report on ‘Setting the Boundaries’ rejected the approach adopted in the case of R vs. Olugboja ( 3 All E.R. 1382) which was to the effect that consent was essentially left undefined and that it was up to the jury to decide in each individual case whether or not the victim had consented to the sexual intercourse. It was asserted in this case that the matter was rather for the judge to direct the jury to the matter of the difference between consent and submission (Ashworth and Temkin, 2004: 332) While section 74 provides a general definition of consent, section 75 provides for rebuttable presumptions that may be made about consent and section 76 provides for the irrebuttable presumptions which ,ay be made regarding the issue of consent.
Nevertheless, certain criticisms may be raised with regard to the provisions of the Act as it concern the issue of consent and these include the question of whether the list of circumstances in Section 75 is extensive and whether the list is to be regarded as non-exhaustive of such circumstances. However, the section 75 is exhaustive as regards the list of circumstances where there is no consent.
Further to this, with regards to the issue of consent, the “three-track approach” adopted by the SOA 2003, i.e. the general definition track, the irrebuttable presumption track and the rebuttable presumption track, is not without its problems (Ashworth and Temkin, 2004: 337). This is because the Act raises questions of whether it intended to be reflective of some sort of normative hierarchy whereby the most serious cases of non-consent would result in irrebuttable presumptions, after which those cases of non-consent falling short of the category that would result in irrebuttable presumptions would give rise to rebuttable presumptions, while lastly with the remainder would fall within the general definition. Again there is the problem of whether the Act intended that the approach be reflective of the organising principle of clarity and certainty, in which case it would be the clearest cases (not necessarily the worst) that would give rise to irrebuttable presumptions, after which the next clearest cases would give rise to rebuttable presumptions, while the remainder fall within the general definition. Further to these questions, there is the added problem of whether the Act intended that the provisions are to be reflective of a mixture of the normative hierarchy interpretation or the organizing principle interpretation, with an added element of common law history. Professors Ashworth and Temkin argue that a better approach would have been one whereby consideration ought to be given to marking out the worst cases of non-consent by means of irrebuttable presumptions (2004: 337).
Under the old law on rape, there is a “fault element” in the offence of rape in that the man knew that the victim did not consent to the act or is reckless as to whether or not the victim consented (Ashworth, 1999: 354). It is however, an accepted principle in criminal law that persons are to be judged on the facts as they believe them to be, rather than facts as they are. Therefore, drawing from this, it could be argued that a mistaken belief by a defendant in a rape proceedings mistakenly believed that the victim had consented to the act of sexual intercourse. This issue came up in the case of DPP vs. Morgan ( AC 182). In that case, the appellant had invited three of his friends to have sexual intercourse with his wife and told them that her signs of resistance were not to be interpreted as lack of consent because she preferred it like that. The three friends were thereafter charged with the offence of rape, while the appellant was charged with aiding and abetting. During trial, the judge had directed the jury that if they were to be acquitted on the basis of their mistake, their belief in the consent of the appellant’s wife must have been reasonable. Upon appeal to the House of Lords, the Law Lords held that it was irrelevant whether the defendants had reasonable grounds for their belief as to her consent, i.e. that there could be no conviction for rape where a man honestly believed that a woman had consented to sexual intercourse and that his belief in such a state of affairs did not have to be reasonable (Allen and Cooper, 2006: 146).
The decision in DPP vs. Morgan which has been termed ‘the rapists’ charter’ (Temkin, 2003: 217) was welcomed by subjectivists and was, indeed, illustrative of a subjectivist approach to the law in the sense that individuals should be judged on the facts as they believe them to be, rather than on facts as they are (Ashworth and Temkin, 2004: 340. Although the decision of the House of Lords has been criticized by many commentators (Lacey, Wells and Quick, 2003: 498; Ashworth, 1999: 354; Temkin, 2002: 119), Ashworth argues boldly that as a matter of general principle that the House of Lords could have still held, on the one hand, the general principle that a defendant is to be judged on the facts as the person believes them to be, and likewise the Law Lords could have also held, on the other hand, that irrespective of the acceptance of the principle that an exception is to be made where rape and other very serious offences have occurred (Ashworth, 1999: 354). However, in view of the fact that the issue of mistaken belief or ‘Morgan Defence’ as it has come to be known can be misused by defence counsel by appealing to “jury perceptions and prejudices” usually to the detriment of the victim of the rape, the SOA 2003 in a bid to checkmate such an unscrupulous practice replaced the test of mistaken or honest belief as in the ‘Morgan Defence’ with a test of reasonableness within its provision (Lacey, Wells and Quick, 2003: 500).
The case of DPP vs. Morgan provided a background to the Sexual Offences (Amendment) Act of 1976 which essentially re-defined the offence of rape as sexual intercourse without consent; a development which was spurred on by the proposals of the Heilbron Committee (Temkin, 2002: 91). However, this Act of 1976 did not define what was meant by “without consent”. It was not until the SOA 2003 that there was a definitional approach to the issue of consent with regard to the offence of rape, as is illustrated in Section 74. This brought the law of the United Kingdom on rape in line with that of other major countries of the Commonwealth like Canada, New Zealand and Australia as well as countries like the United States which provide that where a defence may be raised relying on mistaken belief in consent that such must be honest and reasonable (Temkin, 2002: 127). This is an attempt at some sort of international standardization by bringing the United Kingdom legislation on rape in line with international best practices and standards.
A further problem of the SOA 2003 is that it does not include within its remit the offence of an attempt of any of the offences contained, including rape. Although this has been argued not to seem problematic because the issue of an attempt may be left to the jury where any of the substantive offences in the Act are alleged, it raises particular problems where the defence is one of consent under section 75 because from a textual reading of the provision of section 75(1)(a) it is very clear that the presumptions may not be applied to attempts (Rodwell, 2005: 290).
RAPE AT TRIAL
The problem with rape is very manifest in the criminal justice process. These problems are procedural, institutional as well as evidential. Although significant changes have been made to the law on rape, the weakness of the criminal justice system as well as the weakness of the statutory provisions on rape in protecting rape victims are manifest during rape proceedings. This perhaps contributes to the low conviction rate for rape.
There are some procedural problems which adversely affect the victims of rape by discouraging victims from coming up with complaints against those that have committed the offence of rape and likewise this contributes to low conviction rates for such an offence.
There is the problem of hearsay that is inherent in the nature of rape. As a general rule, hearsay evidence is not admissible in court because of the issue of availability of best evidence on the matter, i.e. where the best evidence is available then it should be made available in court. There is the also the important issue of veracity with regard to hearsay evidence and the right of confrontation of the defendant in criminal proceedings. While the general rule is one of inadmissibility of hearsay evidence in criminal proceedings, there is also the general rule of inadmissibility of previous statements by witnesses in criminal proceedings which are sought to be relied on trial to prove consistency (Temkin, 2002: 187). However, in proceedings for rape, the victim is allowed to give evidence of complaint to a third part in order to corroborate her testimony and give her evidence the necessary credibility since such a statement would go to show consistency on the part of the victim, especially where consent or its lack thereof, is in issue. The main problem here is that for the complaint of a victim to be taken seriously, i.e. giving credibility to her testimony, such a complaint is to have been made within a ‘reasonable’ period. Likewise, in Adler’s Old Bailey study of the central criminal court in England, it was shown that “defending counsel could be relied upon to point out forcefully to the jury any delay in reporting. A significantly lower conviction rate was revealed in such cases” ((Temkin, 2002: 190)
However, the issue of rape is not a straightforward one and varying as the typology of victims may be, likewise do the victims of rape have different ways of dealing with the fact that they have been raped. Therefore, while some victims are likely to complain early, some are likely to complain late and some are likely not to complain at all. This cannot be taken to mean that there has been no rape or that the credibility of the victim is more suspect because of the typology of the victim. Inevitably, the attitude of victims of rape to making complaints, or none at all depends on a variety of reasons. These reasons include the fact that they are embarrassed, scared or traumatized from the experience as well as the fact that they are wary of people passing judgmental comments or exhibiting judgmental attitudes towards them. There is also the added fact that there could be feelings of “unjustified guilt” about the incident (Temkin, 2002: 190).
Importantly, cultural and religious factors considerably affect how and whether victims of rape, especially women make complaints of rape against them and this in turn has implications for the notorious fact of low conviction rates for the offence of rape. Therefore, in cultures and religions that do not fully embrace women’s rights or that are repressive of these rights would adversely affect complaints been brought against rapists. Even, in cultures and religions that embrace women’s rights better or at least claim to embrace these rights fully, there is the problem that the victims of rape will be apprehensive of lodging complaints with a view to the initiation of criminal proceedings against their rapists because of the fear that their sexual history may be brought up in court during trial.
A very common fear of female victims of rape is that of retribution. These victims believe in their minds that the perpetrator of the act, where there has been a violent rape or the rape occurred by a stranger, will come back and attack them again. This is usually because that is part of the threat the attacker warns them of. The victims also fear rejection or violence (beatings) from their partners or that they will be kicked out of their homes. According to one of the leading feminist writers in this field, Catherine MacKinnon, “women also feel fear and despair of police, hospitals, and the legal system. Women believe that not only will we not be believed by the police, not only will the doctors treat us in degrading ways, but when we go to court, the incident will not be seen from our point of view. It is unfortunate that these fears have, on the whole, proved accurate. The fear of being treated poorly is not an invention of women’s imaginations. It is the result of the way we have been treated” (MacKinnon, 1987: 82)
Professor Temkin cites a number of studies that have shown that “many perfectly genuine rape victims fail to report to a third party, either immediately or at all”. These include a study by Paul Wilson that of 70 rape victims who did not report to the police, about 50 per cent had never told anyone prior to the interview for the study or had mentioned it to someone else weeks or months after the incident “in conjunction with a discussion on other matters”. Likewise, the Women Against Rape studies and the Australian Bureau of Statistics show that a considerable (in former study) and majority (in the latter study) number of women did not inform anyone that they had been raped, and those who did more often than not informed someone after some delay (Temkin, 2002: 190). These extensive studies are illustrative of the problems during rape trials and the adverse effects such problems have for the victims, future victims and the criminal justice system. Despite the significant changes that have been made with regard to the definitions of rape and consent, the trial process is still fraught with complications.
The origin of the law on rape is centred on a male-dominated perspective of the offence of rape. This is evident in the evolution of criminal law in that regard. However, feminist studies show that these perspectives are still very much felt especially within the rape trial process. The fact that the majority of interrogating police officers, prosecution lawyers as well as defence lawyers and the majority of judges are likely to be male will have an effect on the victim of rape and in the trial process inevitably. The traumatizing experience of rape for the victims is added to by the operation of the criminal justice system where there is “verbal brutality” during interrogation of rape victims by police officers, an attitude which is usually spurred on by the common belief (one that is predominantly shared by men) that complaints of rape are frequently false. In the study by the Scottish Office Central Research Unit, many police officers expressed the view that it was common that allegations of rape were false. However, Professor Temkin argues that “the report [of the study] notes that despite a certain amount of rhetoric from police officers about the frequency of false complaining, individual officers were unable to document many individual cases which fitted into the category of false complaints.” The commentator continues that “While it is clear that false allegations of rape are made to the police, there is no evidence that fabrication occurs more often in rape cases than in other crimes. Yet the myth persists” (Temkin, 2002: 5)
Rape is traumatizing enough without the added problems of the fear of victims of having to face their attackers again in court, the nature of the conduct of cross-examination by defence counsel. Victims as complainants are usually put through the mill during cross-examination by making them describe in graphic details the rape incident, continual questioning of the details of the rape with the victim having to continually repeat the details. While this might be a litigation strategy to ascertain the veracity of the account by testing the story for consistency, and to discredit the character of the complainant, there is also the ploy of looking for an attempt to twist the events in the account to make it consistent with an assumption of consent. Additionally, there is the contribution of judges in rape cases to the problem of inadequate protection of the vulnerable from rape, a contribution that is reflected in the low conviction rate for the offence of rape. This attitude of judges is reflected in Judge Wild’s summing up to the jury in 1982 in the Crown Court of Cambridge that,
“Women who say no do not always mean no. It is not just a question of saying no, it is a question of how she says it, how she shows and makes it clear. If she doesn’t want it, she only has to keep her legs shut and she would not get it without force and there would be marks of force being used” (Pattullo, 1983: 20-21). Likewise, another judge has stated that “It is the height of imprudence for any girl to hitch-hike at night. That is plain, it isn’t really worth stating. She is in the true sense asking for it” (Pattullo, 1983: 21). Again, in 1988, a judge refused to imprison a former policeman for the indecent assault of his twelve year old stepdaughter stating that the man was driven to it because of his wife’s pregnancy which had dimmed her sexual appetite therefore causing considerable problems for a healthy young husband (Temkin, 2002: 10).
All these practices are evident of a male-dominated perspective regarding the law on rape and unfortunately for the victims, the trial process brings out this perspective more than the statutory provisions. This has led to the notion commonly held that it is the victims of rape as complainants, rather than the defendants that are on trial (Temkin, 2002: 8).
The most problematic issue here has been the issue of sexual history evidence. This concerns the admissibility of previous sexual history of the complainant in court during trial. This has been argued earlier to be one of the many reasons why women are apprehensive of complaining to the police so that the initiation of criminal proceedings against the rapist may be set in motion.
Theoretically speaking, the issue of admissibility of sexual history of the complainant in criminal proceedings was drawn from the issue of the admissibility of similar facts evidence in the case of the defendant (Redmayne, 2003: 87) With regard to similar facts evidence, though evidence of previous misconduct is generally thought to be prejudicial and usually of low probative value, the purpose is to rule when evidence of the defendant’s previous misconduct can be adduced to prove his commission of the offence for which he is being tried. To this end therefore, the similar facts rule of admissibility of evidence is intended to exclude evidence of a defendant’s previous misconduct unless it has significant probative force in a particular case. Likewise with evidence of sexual history in the sense that evidence of the complainant’s past conduct may be given to show that she consented on a particular occasion. This evidence of the complainant’s sexual past would more likely than not be an invasion of the complainant’s privacy as well as prejudicial because it might lead the jury to take judgmental disposition to the complainant. Again, the probative value of such evidence is very much doubtful (Redmayne, 2003: 87).
Historically, evidence of the sexual history of the complainant has been held admissible where the complainant had had sexual relations with other men in the past, or was a prostitute or had a tarnished sexual reputation was regarded as relevant to the character and credibility of the complainant as a witness during trial as well as relevant to the issue of consent (Riley (1887) 18 QBD 481).
The negative effects of the admissibility of evidence of the sexual past of the victims of rape which include the deterrent effect on rape victims from making complaints of rape as well as the jury prejudices against the complainant witness led to certain proposals in 1975 by the Heilbron Committee. The Committee in its report had noted that sexual history evidence was “largely irrelevant and that its admission was not merely traumatic and humiliating for the victim but was also ‘inimical to the fair trial of the essential issues’” (Temkin 2002: 197). The Committee proposed that the use of this type of evidence be strongly regulated and that there should be a statutory provision excluding evidence of the complainant’s past sexual history with men other than the defendant. Further to this proposal, the judge would be given the discretion to admit evidence of past sexual history if the circumstances of the incident were such that it concerned previous incidents of ‘strikingly similar’ nature to the incident in issue and it would be unfair to exclude such evidence due to its relevance and if the circumstances were such that the defence sought to adduce evidence to counter the evidence given by the prosecution as to the complainant’s sexual history. (Temkin 2002: 198).
In response to this, section 2 of the Sexual Offences (Amendment) Act 1976 provided a general rule that there could be no use of sexual history evidence. However, the defence could apply to the judge, in the absence of the jury, for leave to adduce evidence or ask a question with regard to the complainant’s sexual past. It would be left to the discretion of the judge to decide whether it would be unfair to the defendant to exclude the evidence. However, the wide discretionary powers given to the judges to determine whether to include or exclude such evidence, especially in view of the fact of the failure by the judges in the first place control the use of sexual history evidence was widely criticized (Temkin 2002: 198). Unlike the proposals of the Heilbron Committee which were not implemented rather there was an enactment of a new provision in Section 2, the scope of the discretionary powers of a judge to make decisions regarding the admissibility or otherwise of evidence of past sexual history was considerably narrower under the Heilbron Committee’s proposal.
The extent of the relevance of a rape victim’s past sexual history to the issue of consent was considered to be minimal by the Heilbron Committee (Temkin, 1993: 5). However, some commentators and judges have disagreed with this. In the case of Lawrence ( Crim. L.R. 492) it was held that questions about the complainant's sexual relationships with other men should be allowed only where such might reasonably lead the jury, acting under proper directions, to take a different view of the complainant's evidence from that which they might take if the question or series of questions was or were not allowed. In Viola ((1982) 75 Cr.App.R. 125) the Court of Appeal approved the Lawrence test and stated that if the questions are relevant for instance to the issue of consent, as opposed merely to credit, they are likely to be admitted. According to Redmayne, “sexual history evidence – whether it concerns third parties or not – is evidence both of consent and of non-consent. It points in two directions at once. This may help to explain why the relevance question is so controversial” (Redmayne, 2003: 86). While it cannot generally be said that evidence of sexual history of the complainant is relevant, there is also some problem with saying that such evidence is generally irrelevant. The difficulty is determining the relevance of sexual history evidence may be highlighted thus,
“To say that competing inferences can be drawn from evidence is not to say that it is irrelevant. That would only follow if we thought the inferences equally strong. It is not in the least bit easy to say whether they are. We would be on slightly firmer ground if we concluded that though sexual history evidence may be relevant, it is probably of little probative value, and should therefore be excluded on policy grounds. But even this vague conclusion is vulnerable to the objection that we do not know enough about juror cognition to be able to say that excluding sexual history evidence poses no threat to defendants…All the same, it is probably right that in some cases a complainant’s sexual history may have particular probative value, and that in others it will have almost none” (Redmayne, 2003: 86-87).
However, Temkin strongly maintains that “relevance is an insufficiently objective criterion” (1993: 5). She further argues that,
“That a woman has had consensual sexual relations with some or many men in the near or distant past is a reflection of current sexual mores and can shed no light on whether she consented to this particular defendant on the occasion in question. Relevance is in the mind of the beholder and all too often it can be swayed by stereotypical assumptions, myth, and prejudice. As L’Heureux-Dubé J explained in the Supreme Court of Canada’s decision in Seaboyer:
Regardless of the definition used, the context of any relevancy decision will be filled by the particular judge’s experience, common sense and/or logic…There are certain areas of enquiry where experience, common sense and logic are informed by stereotype and myth…This area of the law has been particularly prone to the utilisation of stereotype in the determination of relevance” (2002: 199).
A major problem is how to determine the extent of the relevance of the evidence for it to be admitted. There seems to be a glaring institutionalization of double standards because in the case of defendants, the jury is prevented from learning of past misconduct precisely because of the prejudicial nature of such evidence, the assertion therefore that evidence of the past sexual history of the complainant is relevant or arguments that the since not a lot is known about jury cognition, because of its very subjective nature it becomes important to ask then whether in view of this evidence of past conduct or bad character of the defendant is also relevant; after all not a lot is known about jury cognition to know whether the evidence of defendant’s past misconduct or bad character will be unreasonable prejudicial in effect? Therefore, it is in view of these indeterminate factors as well as the prejudicial effect of this sort of evidence vis-à-vis its probative value that evidence of past sexual history of complainants be excluded not on grounds of relevance but on policy grounds.
AN ANALYSIS OF THE YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999
The Youth Justice and Criminal Evidence Act (YJCEA) was enacted by Parliament in 1999, partly in response to the problems regarding the discretionary powers of judges over the use of sexual history evidence. The YJCEA in sections 41 -43 tried to exert more restrictive control over the use of sexual history evidence (Uglow, 2006: 388).Essentially, section 41 lays down the general rule that evidence of sexual history of the complainant is to be excluded, irrespective of whether the history is with the defendant or with third parties except in certain categorized circumstances. These circumstances include where the issue does not concern consent (s. 41(3)(a)), or if it relates to behaviour ‘at or about the same time’ as the alleged rape (s. 41(3)(b)), or the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar either to any sexual behaviour of the complainant which took place as part of the event which is the subject matter of the charge against the accused, or to any other sexual behaviour of the complainant which took place at or about the same time as that event, that the similarity cannot reasonably be explained as a coincidence (s.41(3)(c)). Sexual history evidence may also be admitted to rebut evidence adduced by the prosecution (s. 41(5)). Under this latter provision, there is a further hurdle: leave to cross-examine may only be given if a refusal might render the jury’s verdict unsafe (R. v. Mokrecovas  1 Cr App R 226).
The YJCEA 1999 has encountered considerable criticisms. Professor Birch argues against the high-handed approach of Parliament in curbing the use of sexual history evidence and indeed categorizes the approach taken in the Act as draconian (Birch, 2002: 531-532). Temkin counters this argument by asserting it could be argued that Parliament was very slow in acting to deal with this problem that had riddled the law on rape for over two decades (Temkin, 2003: 222). Professor Spencer is critical of the new position arguing that the section was introduced simply because "feminists complained that judges gave leave too readily" (2001: 452) Temkin argues against this by asserting that such a view point would seem to indicate that there were nothing at all to support such complaints and further states that such views “reflect those of some members of the judiciary who were supportive of s.2 and sceptical of the empirical findings” (Temkin, 2003: 222). Professor Ian Dennis describes the exceptions as "narrowly defined" and is critical of the new system's "rigidity" because there is no overriding discretion to admit evidence of the type which the rule excludes (Temkin, 2003: 223).
While the YJCEA is not without its criticisms, indeed some the criticisms mentioned above are not without merit, the problems with the law on rape which seemingly seeks to discourage complaints by victims of rape and which contributed to the low conviction rate of rape became such as to necessitate a change in the law whereby the accused, rather than the victim was on trial.
In view of this effect of the YJCEA which seemed to whittle down the scope of examination of a victim of rape during trial, it was only a matter of time before section 41 of the Act was challenged under the European Convention on Human Rights as being in conflict with Article 6 (3)(d) of the Convention which provides a right of accused persons to examine witnesses. This arose in R vs. A ( 3 All E.R. 1). In this case, the defence had sought to question the complainant as a witness on an alleged affair between herself and the defendant. According to Lord Steyn,
“The effect of the decision today is that under section 41(3)(c) of the 1999 Act, construed where necessary by applying the interpretive obligation under section 3 of the Human Rights Act 1998, and due regard always being paid to the importance of seeking to protect the complainant from indignity and from humiliating questions, the test of admissibility is whether the evidence (and questioning in relation to it) is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under article 6 of the Convention. If this test is satisfied the evidence should not be excluded” (Paragraph 46).
The effect of the decision therefore is to read Article 6 of the European Convention into the wording of section 41.
Therefore the essence of the Act, as a rape-shield legislation, is to stop the intrusive questioning of victims as witnesses. In R vs. McKendrick ( EWCA Crim 1393), the questioning as to whether the victim was a virgin before the incident was disallowed. Likewise, in the case of TW ( EWCA Crim 3013) regarding whether the victim had had prior sexual partners.
However, in the case of T ( 2 Cr.App.R. 32, the conviction of the accused was quashed because the question of whether the victim had three weeks prior to the alleged incident had had consensual sex in the same place in a similar position with the defendant was relevant under section 41(3)(c).
To an extent, the YJCEA is an effective piece of legislation particularly as it affects rape victims as witnesses. A big problem that has been highlighted in this essay is the fact of the low complaint rate by victims of rape. This has been shown to be contributed by the nature of the trial process in itself whereby the victims while testifying as witnesses are intimidated during cross-examination. This phenomenon of victim-witness intimidation has been somewhat ameliorated by the YJCEA through its provision for special measures for young children as witnesses, witnesses with physical or mental disorder and impairment and witnesses in fear (sections 16-17 YJCEA). Therefore, victims of rape may rely on these special measures provisions if the judge makes a determination to the effect (Uglow, 2006: 359).
Such special measures include the use of screens, live television links, informal proceedings whereby counsel remove wigs and gowns as well as video-recorded evidence. However, these special measures provisions for victims of rape as witnesses present problems where the accused person, who would invariably testify as a witness comes within the category of witnesses who qualify for special measures, e.g. under 17 years or is mentally or physically impaired or disabled. This automatically, raises the tension with regard to the issue of ‘equality of arms’ of both the state/government in the prosecutorial corner and the accused in the defence corner (Hoyano, 2001: 948). This issue was considered in R. (D) vs. Camberwell Youth Court ( 1 All E.R. 999) with regard to the exclusion of accused persons from the provision of the Act and it was held that to include the accused would have amounted to the “worst of all possible worlds”, rather courts need to ensure that defendants are not at a substantial disadvantage vis-à-vis the prosecution and other defendants.
While this exclusion may seem to be against the interests of the accused regarding a right to fair trial, it is important to note that the courts have wide discretionary powers to ensure that an accused receives a fair trial, and this would include an opportunity of giving the best evidence that they can (Uglow, 2006: 359). The Privy Council in AG for Sovereign Base Areas of Akrotiri and Dhekelia vs. Steinhof ( UKPC 31) has held that the use of screens as part of the special measures do not affect the right of the accused to a fair trial. In R v. Mullen, ( 2 Cr. App.R. 18) it was held that the defendant’s right to fair trial had not been infringed by the replaying of the video evidence of the victim. Likewise, it was decided in the case of P ( EWCA Crim. 3) that the exercise by the judge of powers under section 27 of the YJCEA regarding special measures had not amounted to an unfair trial of the accused.
REFORMS AND CONCLUSION
The problem of the law on rape transcends the historical origins of the law to the institutionalization of the standard of treatment meted out to the victims of rape. Despite laudable efforts that have been made at the re-definition of the crime, the definition of what amounts to consent and the restriction of the use of sexual history evidence, the current state of the law is still far from satisfactory. This is due to the entrenchment of double standards, myths, perceptions and stereotypes within the trial process. The problem inherent in the trial process must take into cognizance the ethical methods of questioning complainants as witnesses must not be achieved at the expense of the fundamental right of an accused to a fair trial. This therefore raises the question of the extent to which victim’s rights can be incorporated into the criminal justice system, especially in rape cases where such victims also take part in the trial process. The effectiveness of the SOA 2003, in view of the problems that have been raised in the essay as it affects the issue of consent, remains doubtful so long as consent remains its central definitional element.
Efforts at the protection of the victims of rape have brought into contest the right of accused persons to a fair trial. Although the securing of the adequate protection of victims of rape is not to be achieved at the expense of international human rights of which the right of accused person to a fair trial is fundamental to, both competing interests should be balanced, and this balancing should be decided on a case-by-case basis according to the circumstances of each particular case. Therefore, the jurisprudence of the courts is to the effect that while the right to a fair trial as enshrined in Article 6 of the European Convention on Human Rights is to be read into the YJCEA, it is not every measure taken in protection of the victim that would be tantamount to a breach of the right to a fair trial.
Finally, important purposes of the law on rape is that it should encourage and not deter the reporting of sex offences and should also improve the conviction rates for the offence. Despite the changes to the substantive criminal law on rape, the impact of these changes on levels of reporting and conviction rates is minimal, however these changes to have substantial effect should be accompanied by changes in social, cultural and religious attitudes with regard to women and the offence of rape as well as changes in police attitudes and practices and in rules of criminal procedure and evidence. There should also be efforts made at adequate provision for victim support as well as legal representation for rape victims. Efforts at education of staff of the criminal justice system ranging including legal counsel (prosecuting and defence alike) and judges would provide the necessary impetus for the achievement of the purposes of the law on rape in a modern society.
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