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Law Has Addressed the Problems Facing Victims of Rape

Info: 3246 words (13 pages) Essay
Published: 3rd Nov 2020

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Jurisdiction / Tag(s): US LawUK Law

Critically analyse the extent to which the reforms of the law has addressed the problems facing victims of rape.

Prior to the Sexual Offences Act 2003 (SOA 03). The proscribed act of rape was defined as the non-consensual sexual intercourse and the guilty state of mind was the intention to commit it or recklessness as to consent.

The United States military’s rape law does not effectively prevent sexual coercion. Those victimized by fellow service members suffer a loss of autonomy and privacy as a result of sexual pressures taking a number of forms not yet adequately addressed by the Uniform Code of Military Justice (UCMJ), which, on its face, continues to criminalize only forcible rape [1]

According to the American Medical Association (1995), sexual violence, and rape in particular, is considered the most under-reported violent crime. The rate of reporting, prosecution and convictions for rape varies considerably in different jurisdictions. The U.S. Bureau of Justice Statistics (1999) estimated that 91% of U.S. rape victims are female and 9% are male, with 99% of the offenders being male.

If we look at Lord Hailsham concept about ‘rape ‘the say that is ‘’intention of having intercourse,willy-nilly,not caring whether the victim consentsor not’’.

Leitenberg & Henning, 1995). For example, romance novels, which are extremely popular forms of literature written for women, allow the reader to participate in a structured fantasy. In these novels, rape of the lead character is a common theme (Thurston, 1987).

The Content of Rape Fantasies

Incorrect rape responsibilities have probably been in existence as long as the concept of rape. However, in the 20th century, medical jurisprudence published a new progress that permitted wrong allegations to be viewed as a particular occurrence of gender-related lying, rather quite different in nature from the false allegations of robbery or burglary that were made by men. In short, false rape accusations became a reflection of a unique complaint of women, not unlike that of kleptomania (Abelson, 1989). This new development was the masochistic nature of woman principle, a perspective that expected women had a subconscious desire for rape, as demonstrated by their rape fantasies.

Kanin (1982)was reported the only disciplined experiential explanations of rape imaginary contented. He was asked women to define their rape fantasies and categorize them as either sexual, terrible, or a combination of both. Kanin’s marks indicated that 50% of the women who had rape fantasies reported that these fantasies were totally fearful, 29% reported they were completely sexual, and 21% reported that they were a grouping of fearful and sexual. Note that the assessment for completely fearful than that proposed by other research (Maltz, 1995; Strassberg & Lockerd, 1998), and Kanin’s approaches were comparatively unique. Rather than implanting a rape imaginary item within a sexual imaginary checklist, he asked a extensive, solitary, and strongly worded item on rape fantasy. In tallying, members finished their surveys in an unusual research setting–a dormitory deprived of experimenter supervision.imaginations is higher.

After reinterpreting applicants’ self-descriptions, Kanin (1982) resolved defibition that females’ rape imaginations fall into two detached classes: sexual and fearful .Example in sexual imaginations, a female is destructively approached by an striking man, who is stereotypically a good friend or maybe lover. She bounces only token verbal hostility, if any, to a anticipated sexual happenstance. Kanin defined these as extremely emotional, aggressive seductions. Thus, Kanin proposed that women’s self-identified rape imaginations that tangled sexual provocation should be thought of more as aggressive seductions rather than as rapes. In fearful illusions, the man is likely to be adult, less striking, and a foreigner; and the woman is more likely to see herself as an innocent victim. These imaginations contain forced and painful violence and no sexual provocation. Kanin did find systematic alterations among fearful and sexual delusions, but there was also considerable overlap with regard to the man’s status as a friend or stranger, male age, male attractiveness, and perceived female innocence.

Gold, Balzano, and Stamey (1991) had members write descriptions of their recurrent sexual imaginations. Those who involved a force imaginary reported feeling more afraid, guilty, disgusted, and less happy after having the fantasy than did other women. Those with a power imagined may have been relating the type of aversive rape fantasy noted by Kanin (1982). It is also thinkable that some of these illusions were undesirably toned flashbacks of previous sexual assault, as such flashbacks are common (Foa, Rothbaum, Riggs, & Murdock, 1991; Kramer & Green, 1991; Maltz, 1995).

Strassberg and Lockerd (1998) scrutinized logs of sexual imaginations and advised that most power imaginations are wanted by the women, and that females do not gladly participate in erotic fantasies of realistic rape. Bader (2002), on the foundation of experimental practice, recommended that some sexy rape illusions do include a dominant, ruthless, uncaring physical and that these imaginations are highly exciting for some women. His interpretation was that rape by this type of man relieves dominant women of the requirement to feel nervous or guilty that a full countenance of their own sexuality potency portend or overpower an actual partner who is believed to be sensitive and weak.

McEwan points out that cross-examination of sexual victims is a major source of


‘’It appears to be through legitimate to quiz them upon the way they care for their children , what underwear they were wearing at the time of the alleged rape, whether they use make –up and take trouble with their hair , and upon the details of their menstrual cycles , for no apparent reason other than to humiliate and embarrass them’’

Popularity of rape

Violent sexual crime how as ‘rape ‘Involve ached from underreporting. Given the extremely subtle nature of the act , there are many explanations for not reporting. Possible details for the hesitancies are being distrusted or disgraced and the following properties created by reporting the crime such as, the bad advertising and the inspiration on current relations in the prey’s existence. If the victim is a kid, the family may want to defend the child from future harm. Another key feature in underreporting in part by the police and Crown Prosecution Service, is relevancy of the victim’s sexual past. The victim may also be reluctant to divulge the offence through fear of reprisal from the offender , as often the victim and offender are previously acquainted , which may cast doubt on whether has occurred. When a women suffers rape her husband or a man she may have known for a long time, this may result in scepticism .As West (1983. P.10) suggest rape may be preceded by some form interaction between victim and offender . Contrary to this , the imagine of sexual crimes portrayed in the media are often distorted, focusing mainly on the archetypal few acts of ‘stranger rape’ , which in a statistichal sense,only account for 8percent of all recorded incidents of rape (Myhillet al, 2002,p3).Through use of Psychoanalytic theory, proposed by Freud (1856-1939),failure to report the incident , especially by a child victim, could possibly lead to unresolved inner-conflict. This internalisation could produce in the victim variables such as , depression neurosis, detachment and anxiety

In the Rape affects all women , no important which their age , competition or status. The licentious nature of rape can psychologically produce in the victim a sense of scheme , guilt and personal responsibility.

The acts rues of rape within the SOA1956 was simply definite as illegal sexual interaction with a females, which was edited in 1966 to unlawful sexual association with a women without her agreement. The 1990s alternate two major deviations connecting to the acts rues of rape.

In 1991,after over 100 years of feminist activism rape within marriage converted illegal within the common law scheme and this was placed into statute in the CJPO [2] 1994 when The Word ‘Unlawful’ was detached from the definition. Where it had previously been judged in common law that married women had no capability or expert to’ not consent’.

‘’The sexual communication between them is by virtue of the irrevocable privilege conferred once for all on the husband at the time of the marriage’’ [3]

The illegalization of married rape was contentious within legal circles .This is because when it was forbidden in 1991 it was seen as being criminalized by judge made law relatively than the selected administration.

The case in question was R V R (1991) [4] where it was suspected that a husband had tried to have sexual contact with his estranged wife without her agreement and physically assaulted her by squeezing her neck with both hands. The case was not whether he had attempted to force his wife to have sexual contact without her agreement, but whether this fell under the legal definition of ‘’unlawful’’ sexual interaction. Relying upon Halen’s now infamous statement [5] the defence argued that because the acts were against his wife this could not be classed as unlawful.

The Court of Appeal concluded:

‘’we take the view that the time has now arrived when the law should declare a rapist subject to the criminal law, irrespective of his relationship with his victim’’

This judgement was later upheld to the House of Lords and at the

ECrtHR’’(European court of Human Rights )

The SOA 2003 explains the acts Reus of rape as penile infiltration of the vagina anus or mouth of another person without their agreement. Then, in terms of its acts Reus , rape has gently changed over closely half a century from illegitimate sexual communication with a women to penile penetration of the vagina,anus or mouth of another person without their covenant .The spreading of the act’s Reus to embrace penile penetration without their consent. The widening of the actus Reus to include penile penetration of the mouth is based on opinions made in the SOR 2000 that other systems of penetration (penile penetration of the mouth, or virginal or anal Penetration with an thing or another part of the body) should be preserved just as really as penile penetration of the vagina or anus.It was choose that rape should be lengthy to include penile penetration of the mouth, on the basis that

‘’forced oral sex is as horrible , as demeaning and as shock bite as other systems of penile penetration’’ [6]

This means that it leftovers a gender – specific felony with regard to the offender but a gender –neutral crime to the victim. Again offence of beating by penetration was presented to cover penetration by items other than a penis, as eighth rape resonant the maximums sentence of life incarceration.

The secant part of acts Reus tells to a lack of agreement. There are normally three lines of protection used in rape cases,: that interaction never took place ,that it took place but not by the accused or that it took place but that the victim consented to it or that the accused believed that the victim consented to it(Baird. 1999_Baird1999 hights that there are very few rape cases that are ‘whodunits; ’and the defence that sexual intercourse never took place is also rape,Thense defence s are likely to have become even less common since developments in DNA testing )less1996);The topic of agreements is there what many rape defence influences emphasis on and one of them objects of the review of sexual offences was to ‘’clarify he law on consent’’

The source of the ‘consent problem lies with the obligation of the prosecution to demonstrate the absence of consent (rather than requiring the defence to prove that they had taken steps to ascertain consent), and in many approaches this problem is sole to rape cases.A further problem in rape cases is that the only direct witness is likely to be the rape target ,which means that cases often come down to one person’s word against the other. If the defendant says that the victim consented and the victim says she did not consent then it is difficult to validate either person’s statement of the act [7] Because of the nature of sexual offending it is unlikely there would be a third party available to directly corroborate either statement.

The SOA 2003 section 74was refers to a person’s capacity to make a choice. A person might not have sufficient capacity because of his age or because of a mental disorder.

And by returning to the category approach by listing the categories in statute. However ,the 2003 ACT differentials between six categories where consent is presumed to be absent ,unless there is sufficient indication to the contrary to promotion an subject that the defendant reasonably believed that the victim consented , and two categories where consent is conclusively presumed to be absent .The means that the issue of consent still,to some extent rliesupon the mental state of the defendant ,even in cases such as where the victim was asleep ,experiencing violence from the defendant , or unlawfully detained ,althought the ‘burden of proof’ id reversed in these situations with the defendant required to demonstrate the steps he took to ascertain consent.This second part of the offence of rape- the mens rea- is based on the principle that an personal should not be punished for an act that they did not know they were committing at the time of the act.Althought the actus reus and the mens rea are components of all crimes ,the mens rea only becomes relevant when the conduct in question contains some level of ambiguity .The need to prove both the actus reus and the mens rea is appliciable to other crimes besides rape . The most regulary used example is the crime of trespass/;it is against the law to trespasss onto another ‘s property , but a person cannot be convicted if they did not know they were trespassing . Whether or not a person intended to commit a crime is probably more central in rape cases than for other criminal offences when it comes to proving the ‘guiltty mind’

Previously, if a man dedicated the acts Reus of rape – the guilty act, but he fairly supposed that the women was consenting regardless of how unreasonable that belief was, he cannot convicted of rape because the mens rea –the guilty mind was not present. This was known formally as the ‘mistaken belief ‘clause and informally as the ‘rapist charter’(temkin1987)because it meant that a women could be actively non-consenting ,even shouting ‘no’ and struggling to free herself, and a man could still be blameless of rape .It is a defence that is very difficult ,if not impossible , to disprove because the defence relies upon what going the defendant’s mind .

The ;incorrect belief’ clause was first introduced in Morgan [8] In 1976 When A husband collected in the raping of his wife by three of his friends .He allegedly told his friends that his wife would fight and say ‘turned her on’thought she did not want to have intercourse with them,but that this ‘turned her on’because she was ‘kinky’.The suspect men claimed that they honestly believed she was enjoying it and consenting and that they did not intend to rape her-in other words they never had a guilty mind.Alhought in the Morgan case the men were convicted , and the husband convicted of aiding and abetting ,this case set a NEW PRECEDENT .the House of Lords ruled that if a man honestly believed that a woman consented, regardless of how un reasonable this belief was ,he could not be found guilty of rape.

Feminist activist groups canvassed for many years that the mistaken belief defence should be based on some test of reasonabless or that the mistaken belief clause should be abolished altogether.These are issues that have been widely debated throught the cammon law world

In the SOR2000 there was much discussion about the mistaken belief defence , but no clear agreement was reached as to what should be recommended . Around a third of the respondents to the rape and sexsual attack section of the Review argued that Morgan Shoud be changed so that belief must be both honest and reasonable [9] .Alongside these reponces , a postcard campgain to Jack Straw(then the home secretary)was organised by the feminist activist group Campgain to End Rape,which called for a total dismissal of the Morgan ruling.The debate within the review was not whether Morgan should be changed per se , but rather how is should be changed , and what, if anything should replace it.

Once a woman sets in motion a camplaint that she has been raped,she will have to undergo a prolonged order al . The beginning of the 21st Century saw a major overthul of the sexual offences legislation in England and Wales .The criticisms feminist academics and activists have highlighted in terms of rape law in England and wales are similar to those described in other countries with adversarial legal systems .Most rape victims who report the offence to the police will never even see their case reach court, never mind see the perpetrator convicted for ape .While more and more men are being reported to the police for rape , the proportion that is convicted for rape has been steadily falling since records began.The actus reus relates to a lack of consent. There are generally three lines of defence used in rape cases:that intercourse never took place ,hat it took place but not by the accused or that it took place but that the victim consented to it or that the accused believed that the victim consented to it. After much debate ,the SOA2003 Section 1 defined the mens rea of rapes as if ‘A does not reasonably believe that B consent’s [10] .Whether or not the belief is classed as responable is determined after regarding all the circumstances,including any steps Amay have taken to ascertain whetherBconsents .Despite so many reforms , it could still be said that the legal system fail is to take in to account he interests of the female victim because the stigma attached to rape is still there.The reform can be seen as more of a judicial reform ,to aid judges to arrive at a firm conclusion that as a reform which of a reform which has in particular taken the interest of the rape victim into consideration .The research concluded by Amnesty International still suggests that a third of the UK population still blame the woman being raped.

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