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Rape in UK courts and law

The Rape Crisis Federation (hereinafter RCF) was founded in 1996 as a national co-ordinating body for the rape crisis association in England and Wales. The strategic intentions of the establishment had been to secure a voice for the sixty three self-regulating, locally based rape crisis groups that represented its membership; to lobby and campaign for amendments in legislation on sexual violence and to acquire statutory funding for rape crisis centres.[1] RCF was a powerful and vociferous campaigner for female survivors of sexual violence and for the services that are to present support for such women. It effectively petitioned on a considerable amount of legislative and policy related matters, for example, the Youth Justice and Criminal Evidence Act 1999 and most recently the Sexual Offences Act 2003. It was not however triumphant in protecting statutory, central funding for rape crisis services in spite of campaigning to bring England and Wales in line with other European countries. It frequently lobbied the Government on ensuring that the rights of women in England and Wales were corresponding to those women elsewhere in Europe but with no advantage.

In November 2003, RCF was closed due to a lack of funding. The closure of the establishment was by no means owing to a lack of requirement for such a body. Indeed, there were 5,759 reports of rape in 1996 and by 2003 there were reports of over 9,000.[2] The conviction rate for rape is approximately 5.8%; revealing the worst intensity in the whole of Europe.[3] Nevertheless, RCF has presented the Government, the Police, the CPS and several other associations with knowledge on the subject of sexual violence. It has performed on a global level, working with groups, both in Europe and internationally, to force the concern of sexual violence securely onto the political and public agenda.[4] The concerns relating to sexual violence are remaining and the rape crisis movement will, it is submitted, deeply miss the dexterity of a national organization. For this reason, the support of victims of rape has been severely tarnished by the Federation’s closure. The lack of support of rape victims is emphasised by the special rules of evidence and procedure for rape trials. These provisions have caused considerable controversy and reflect further the lack of support offered to victims of rape. The ensuing discussion shows that this lack of support is symbolic in the current law of rape.

Until 1994, a mandatory corroboration declaration had to be specified at a rape trial. It intended that the judges constantly had to advise the jury that it was injudicious to convict on the woman’s evidence alone. That did not indicate that there could be no conviction without evidence corroborating what the woman alleged, although evidently juries may place great significance on what the judge had to disclose, and the caution could have presented uncertainties where none would have existed without it. The caution seemed to mean that women were liars, and prone to claim rape where none had taken place. In 1991 the Law Commission suggested that the corroboration decree should be eliminated and the Royal Commission on Criminal Justice in 1993 agreed. Owing to these recommendations, and prevalent disapproval of the caution, ss. 32 and 33 of the Criminal Justice and Public Order Act 1994 eradicated the mandatory corroboration declaration. On the other hand, this does not straightforwardly resolve the predicament. Even though it is not at present mandatory to issue the caution, judges may still supply it where they deem it to be crucial and, given the assertions which some of our judges have declared on rape, it is dubious whether this responsibility is reliable at their discretion.[5]

Furthermore, evidence of a woman’s sexual experience is occasionally admissible as evidence in court. Such evidence has in the previously been employed to give the jury a negative impression of the victim and make it seem that she was not a reliable witness. The implication is that a woman who has had an active sex life with men other than a husband is dishonest and in the main cannot be relied upon.[6] Additionally, it plays up to the principle that only ‘good’ women merit protection from rape. In 1975, however, the Heilbron Committee believed that modification of the rule was imperative. It anticipated that evidence of the women’s previous sexual experiences should only be stated if it involved prior sexual intercourse with the defendant, or the past sexual experience was ‘strikingly similar.’ This attitude was discarded by Parliament as too restrictive. As an alternative, s. 2 of the Sexual Offences (Amendment) Act 1976 was approved. Within this section, preceding sexual experience with the particular defendant was at all times admissible, and evidence of such an experience with someone else would also be admissible if the judge understood that ‘it would be unfair to the defendant to decline to allow the evidence to be adduced or the question to be asked.’

Unfortunately, the section was set a very wide explanation by the courts. In Lawrence, the Crown Court settled that the defence could interrogate the plaintiff about previous sexual relationships with other men if such circumstances ‘might reasonably lead the jury, properly directed in the summing-up, 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.’[7] In the words of Elliott and Quinn, this seems to miss the point: the reality that juries frequently do take a changed belief after such evidence is given is exactly why defence lawyers introduce it; however, the problem is whether such evidence should be the foundation on which the jury alters its belief. The Court of Appeal in Viola continued to endorse this trend.[8] In actual fact, 75 per cent of women who have been raped leading to court actions were questioned about their prior sexual encounters with men other than the defendant.[9]

The Government understood that victims of rape were not being sufficiently protected in court actions and, in cooperation with the RCF, established innovative legislation on the subject. The Youth Justice and Criminal Evidence Act 1999, s. 41 replaced s. 2 of the Sexual Offences (Amendment) Act 1976. Under s. 41 of the 1999 Act, evidence of the complainant’s previous sexual conduct can only be employed in a trial with the leave of the court. Section 41(2)(b) asserts that leave can only be given if ‘a refusal of leave might have the result of rendering unsafe a conclusion of the jury or … the court on any relevant issue in the case.’ Additionally, under s.41(3) leave can only be granted if: the evidence in question related to a relevant issue in the case, and either; that issue is not an issue of consent; it is an issue of consent and the sexual behaviour of the complainant to which the evidence in question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused; or it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar 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 be reasonably explained as a coincidence. For the function of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.

The apparent intent of Parliament was to considerably limit the purpose of previous sexual history in rape trials and this was principally due to the effective petition of RCF to provide further support to victims of rape. Unfortunately, in the first case to reach the House of Lords relating to this section, R v A, the House relied on the Human Rights Act 1998 (hereinafter HRA) with the intention of disregarding the obvious intention of Parliament.[10] It found that a defendant had to be allowed the opportunity to adduce evidence as to the complainant’s previous sexual behaviour with the defendant which had occurred over a week before the supposed rape. It believed that otherwise the section would be in breach of Article 6 of the European Convention on Human Rights (hereinafter ECHR) assuring a fair trial, which was incorporated into national law by the HRA.

In R v A the defence maintained that the defendant and the complainant had had sexual intercourse on a number of instances for the duration of three weeks former to the alleged rape with the last occurrence being roughly one week before this. The alleged rape took place when the defendant and the complainant were walking along a towpath that ran by the side of the Thames in the early hours of the morning. As they walked along the towpath the defendant fell over. The complainant’s explanation was that she attempted to help the defendant to his feet, at which point he pulled her to the ground and had sexual intercourse with her without her consent. Afterwards, the complainant made an allegation of rape to the police. The defendant maintained that sexual intercourse had occurred with the complainant’s consent and that this was part of a regular sexual relationship. Alternatively, the defendant proposed to rely on the defence that he assumed she consented. The complainant was at the time in a sexual relationship with the defendant’s flatmate. At an introductory hearing the defendant applied for leave to cross-examine the complainant about the supposed previous sexual relationship. Relying on the requirements of s. 42 of the Youth and Criminal Evidence Act 1999, the judge held that the complainant could not be interrogated about her alleged sexual relationship with the defendant. Appeals were made to the Court of Appeal and then the House of Lords. The House found that, in construing s. 41, it had to relate s. 3 of the HRA. This necessitates that: ‘so far as it is possible to do so, primary legislation … must be read and given effect in a way which is compatible with the Convention rights.’ The House understood that: ‘the test of admissibility us 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 trail under Article 6 of the Convention.’

The verdict represents a significant early use of the HRA in the circumstance of the criminal law. It is an important pronouncement, which severely limits the impact of the 1999 Act and the provisions of the RCF. It moves towards the position previous to the passing of the legislation. The legislation still offers judges the responsibility to permit a victim, to be questioned about sex with men other than the accused. The movement group Women Against Rape (WAR) contends that the admission of such evidence gives juries the wrong message: they are being asked to determine, not whether a woman was raped, but whether she is permitted the defence of the law. Without the assistance of the RCF, the support of victims of rape, in this sense, is severely troubled.

Until fairly recently the incident of rape allegations throughout the trial could be made exceptionally distressing due to their exposure to direct questioning by the defendant. In one instance, the complainant, Julia Mason, was subjected to six days of cross-examination by her attacker, Ralston Edwards.[11] She consequently surrendered her entitlement to anonymity with the intention of instituting a change in the law. Parliament has now arbitrated to deal with this hindrance, with the Youth Justice and Criminal Evidence Act, again effectively petitioned by RCF. Section 34 compels an absolute prohibition on any person charged with a sexual offence from themselves asking any question of a complainant with regard to the offence charged or any other offence. Frequently this is not a difficulty as the considerable majority of defendants are represented by a lawyer and the cross examination is carried out by their lawyer. The predicament occurs where defendants have decided to act in person, rather than be represented by a lawyer. Under s. 38, a court appointed defence representative can now perform the cross examination in these circumstances. It is submitted that if the RCF, by effectively petitioning for the Youth and Criminal Evidence Act, has succeeded in helping to eradicate one of the criticisms of previous proceedings in rape, such support will fail diminish now that the Federation has closed.

The lack of support offered to victims of rape is further highlighted in reference to the issue of consent. The Sexual Offences Act 2003 has upturned the burden of proof corresponding to the question of consent in particular situations. The Heilbron Committee found that this constituent of the offence encouraged lawyers to bring up evidence of the victim’s sexual history, in an attempt to confirm that she was expected to have consented to sex. As Carol Smart states, the insinuation is that if a woman has consented to sex with different men in the past, she would almost certainly consent to anyone, including the defendant.[12] An American scholar, D Dripps, has recommended that the importance on consent is detrimental, because of the way it concentrates on the victim’s state of mind, rather than on the defendant, making it seem that the victim is on trial.[13] To prevent this difficulty he advocates that serious sexual offences should be classified without reference to consent at all; rape would be eliminated, and a new sexual offence substituted, which would be established as the defendant knowingly presenting the victim with the choice of sex or violence. A second slighter offence would then be that of knowingly achieving sexual intercourse with the victim in disrespect of a verbally expressed refusal. Another method would simply be to modify the burden of proof in all cases, so that it always fell on the defendant to prove that the complainant consented. Temkin, an academic who has written at length on the subject of rape, has contended that a man should have a legal responsibility to ask if a woman is consenting, despite the fact that it is controversial how far this suggestion is practical.[14] S. Box disputed that coercion and not consent should be the vital question where a man is in a situation to enforce punishments for refusal, his power to coerce should be the crucial issue, not her consent.[15] He states that the law presently concentrates on the man’s physical superiority, but pay no attention to his social, economic and organisational superiority.

It is important to remember that rape is equally relevant to male victims as it is to female victims of rape. There is however, an intense lack of support for male victims of rape. Until 1994, rape was limited to vaginal intercourse. It was extended to anal intercourse by the Criminal Justice and Public Order Act 1994, so that men as well as women could be victims of rape. The Sexual Offences Act 2003 has extended the offence to cover anal intercourse, to some extent through the petition of RCF. However, the penetration by objects other than the penis is not covered by the offence. On the other hand, in a 1984 report by the Criminal Law Revision Committee (hereinafter CLRC), restricting rape to vaginal intercourse was favoured. The Committee contended that rape was an explicit form of behaviour which the public acknowledged and so to widen it might cause uncertainty and could consequently deteriorate the social stigma attached to the offence. The CLRC also pointed out that with other forms of penetration there was no risk of pregnancy. With the existence of such powerful Committees, the support of male rape victims is weakened, especially owing to the closure of RCF.

Very few rapes lead to the offender being convicted and punished. Hindrances to a triumphant prosecution subsist at every stage of the criminal justice system. Many victims do not report the offence to the police, although the percentage of rapes reported has increased in recent years. Less than 10 per cent of reported rapes lead to a conviction.[16] In 25 per cent of situations the complainant removes her complaint. This is perhaps owing to the lack of support, and the victim being aware of this, in situations of rape. Indeed, a key motive for underreporting is anxiety of the criminal justice process itself, which can make a victim feel as if they are the one on trial. Even where rape is reported, there is in truth little likelihood of the offender being tried. This is not simply because some rapists are clearly never caught, but also, in relation to a 1995 report by the pressure groups Women Against Rape and Legal Action for Women, as the Crown Prosecution Service has shown itself unwilling to prosecute rape in many cases. They state that throughout the early formation of the CPS in 1986, this had dropped to less than on-fifth. In situations studied in the report, the CPS had declined to prosecute on the grounds that evidence was insufficient, inconclusive or uncorroborated, although the evidence was in fact stronger than in high-profile cases such as that of Austen Donellan.[17] The CPS has declined that rape is regarded in a different way from any other offences as regards the decision to prosecute. A vital difficulty in securing a conviction is the reliability conflict that exists between the complainant and the defendant: she says she did not consent to sexual intercourse and he says she did.[18] There may be no other witnesses and no other evidence of any kind which could aid the jury in deciding its outcome. In an adversarial system where the prosecution have to prove guilt beyond reasonable doubt this disagreement is always prejudiced in favour of the defendant. This disinclination to convict without corroborative evidence is shared with the jury’s lack of enthusiasm to convict where the evidence of the case do not fit into the prevalent stereotype of a violent rape by a stranger. It is important to note here that the CPS was directed by RCF when it was in force.

The ordeal of rape complaints is regularly made severe by a victims experience of the criminal trial process. There has also been apprehension in the past that judges were too relaxed when sentencing rapists and now that the offence has been extended to include male rape , there is a concern that the judges may be inclined to pass heavier sentences where there has been a male victim rather than a female victim.[19]

In conclusion, many of the problems surrounding the law of rape arise from attitudes to women and sex, and misconceptions about the offence itself. The degree to which these views may be supposed by juries can be seen in the results of a Gallup poll taken for the Daily Mail in 1994. One-third of respondents believed that a woman was partly to blame for her own rape is she dressed provocatively, and approximately one half if she voluntarily went to the man’s home or room, and said ‘yes’ and then changed her mind. Forty per cent felt that a woman was partly to blame is she was under the influence of drink or drugs. The media exposure of the Austen Donellan case in 1994 publicized similar feelings. While the evidence was positively weak, it was not that which caused the objection, but the fact that the complainant had got drunk and got into bed with the defendant. The Daily Mail described the complainant as ‘drunk and sexually shameless.’ The idea therefore seems to be that only two kinds of women deserve protection from rape: the innocent virgin, or those who know their place, accepting that their sexuality belongs not to them but is held on trust for their husband or future husband![20] Only when approaches towards women change will there ever be any chance of bringing the majority of rapists to justice. However with the closure of RCF, this appears all the more difficult.


As per footnotes


[1] The Rape Crisis Federation (England and Wales) Press Release 2003

[2] Ibid

[3] Ibid

[4] Ibid

[5] Catherine Elliott and Frances Quinn, Criminal Law, Pearson Education Limited, 2004, 5th edition

[6] Ibid

[7] Lawrence v Metropolitan Police Commissioner [1972] AC 626; [1971] 2 All ER 1253

[8] Viola [1982] 3 All ER 73, CA 135

[9] Op Cit 5

[10] R v A [2001] 2 WLR 1546

[11] Case reported in Op Cit 5 p 137

[12] C Smart, Feminism and the Power of the Law, London: Routledge (1989)

[13] D Dripps, For a Negative Normative Model of Consent, with a Comment on Preference- Skepticism (1992) 2 Legal Theory 113

[14] J Temkin, Rape and the Legal Process, London: Sweet and Maxwell, (1987)

[15] S Box, Power, Crime and Mystification, London: Tavistock (1983)

[16] Harris and Grace, A Question of Evidence? Investigating and Prosecuting Rape in the 1990s (1999)

[17] Case reported Op Cit 5 p. 143

[18] Op Cit 5

[19] See for example the case of Richards [1995] Crim LR 894, CA 140

[20] OP Cit 5

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