Select Committee on Home Affairs Fifth Report

2. Rape and consent

8. Rape has been described as "the most serious, the most feared and the most debated" of all sexual offences.[8] During the Bill's progress through Parliament, strong opinions have been expressed both for and against the proposed reforms on rape. In this section, we concentrate on the three major issues. First, the proposal to extend the definition of rape to include penetration of the mouth; secondly, the introduction of an element of reasonableness into the 'defence' of mistaken belief in consent; and thirdly the use of presumptions against consent and mistaken belief in consent. It is important to start, however, by setting the context. Part of the purpose of these provisions is to address the high rate of attrition in rape cases.


9. During the debate in Committee, the Minister of State at the Home Office, Lord Falconer of Thoroton QC, said that there were 9,008 alleged rapes recorded in 2001. In only 5.8% of these cases was there an eventual conviction. Of the 1,267 persons actually charged and tried, 41.2% were convicted. He went on to say, by way of comparison, that the general conviction rate for trials by jury was 73.4%. [9] Giving a broader picture from the post-war statistics, Professor Temkin states that:

"the number of recorded offences of rape has radically increased, but the prosecution rate is dropping, as is the committal rate and the conviction rate. Thus, the attrition rate in rape cases after recording by the police is increasing."[10]

The definition of rape

10. The proposal to extend the definition of rape to include forced penile penetration of the mouth follows a recommendation of the Sexual Offences Review committee.[11] At present, forced oral sex is regarded as an indecent assault and the offence of rape is confined to penile penetration of the vagina and anus. However, rape was historically limited to penetration of the vagina before it was redefined in 1994 to include anal penetration.[12]

11. Peter Rook QC, Chairman of the Criminal Bar Association, told us that his organisation was opposed to the proposal because "juries might be less inclined to convict of rape itself" in a case which involved forced oral sex. He suggested that Clauses 3 and 4, concerning assault by penetration, "would be a more natural home for it", particularly given that the penalty (life imprisonment) was the same as that for rape.[13]

12. In response, Cathy Halloran, who spoke on behalf of the Rape Crisis Federation and Campaign to End Rape, argued that to distinguish forced oral sex from rape downgraded the seriousness of this form of assault. She said that people's experience of this assault was "as degrading and traumatic and horrific as penetration of the vagina or of the anus".[14] Furthermore, she doubted whether juries would be any less likely to convict, given that judges will direct the jury on the new law.[15] In her view:

"The law adapts to cultural changes and we have a different perception now of rape in that rape can now be rape of a male and rape of a female, it can be vaginal and it can be anal. In my view, it [can] become…penile penetration of the mouth and it will be accepted just as anal penetration has been accepted as rape."[16]

13. Janet Arkinstall, from JUSTICE, said that "as a matter of logic, I would prefer that it be in Clause 1 simply because that is dealing with penile penetration of an orifice of a person."[17] By contrast, Clauses 3 and 4 deal with penetration by other body parts or objects.

14. We have no difficulty with the proposal to extend the definition of rape to include forced oral sex. We see the logic of grouping all forms of non-consensual penile penetration—including penetration of the mouth—within the same offence. The law on rape has adapted successfully to changes of definition in the past and we find no reason to suspect that juries will be reluctant to convict on the new definition.

Belief in consent

15. The proposal, in Clause 1(3), to change the mental element of the offence of rape has been the subject of extensive debate in the House of Lords. We do not propose to repeat those arguments here.[18] As the law currently stands, to be guilty of rape a man must know, or be reckless as to whether, the other party is not consenting.[19] If he honestly believed that the other party consented, he does not have the necessary 'guilty mind' for this offence. 'Mistaken belief in consent' can therefore be used as a 'defence' to a rape charge. At present, the test—which was established in DPP v. Morgan (1975)[20]—is a subjective one, which does not require the defendant's mistaken belief to be objectively reasonable.[21] If implemented, Clause 1(3) will change the law on mistaken belief by introducing a "reasonableness" requirement.

16. In support of the reform, the Minister of State at the Home Office, Lord Falconer of Thoroton QC, has said:

"The unsatisfactory elements of the current position are, first, that it implicitly authorises the assumption of consent regardless of the views of the victim. Secondly, it is easy for the defendant to seek consent—the cost to him is very slight and the cost to the victim of forced sexual activity is very high indeed. We believe that it is not unfair to ask any person to take care to ensure that their partner is consenting and for them to be at risk of a prosecution if they do not…So we take a strong view that there should be an objective element in the matter."[22]

17. We welcome the proposal to adopt a more objective test for determining whether the defendant held an honest but mistaken belief in the complainant's consent. In our view, it is not unreasonable to require a person to take care that the other party is consenting. As the Minister has said, "the cost to him is very slight and the cost to the victim of forced sexual activity is very high indeed".

18. Much of the debate on this Clause has focussed on the question of how the test should be formulated. In the Bill as introduced, Clause 1(3) proposed to replace the Morgan test with a two-stage test. This required the jury to consider first, whether a reasonable person would, in all the circumstances, have doubted whether the complainant was consenting. If there was room for doubt, then the jury were required to consider, secondly, whether the defendant "acted in a way that a reasonable person would consider sufficient in all the circumstances to resolve such doubt".

19. This formulation was criticised on two grounds. First, it was feared that it would lead to injustice in some cases because it (arguably) failed to take account of the defendant's particular characteristics, for example a learning disability.[23] Secondly, it was said to be unnecessarily complex and made more difficult by its operation in connection with the presumptions in Clause 78 (now Clauses 76 and 77). As a result, it was believed to be in danger of confusing juries and generating appeals.[24]

20. On the first point, the Chairman of the Criminal Bar Association suggested to us that the test be amended to require the jury to consider "what a reasonable person 'sharing the characteristics of the defendant' would have thought".[25] The Government opposed this, however, on the grounds that it would require the jury to consider all the characteristics of the individual defendant. This, it believed, would be inappropriate because some characteristics "should not absolve [the defendant] of guilt: for example, the fact that he has a quick temper or that the sight of a girl in a miniskirt will always turn him on and make him unable to resist her".[26] Hilary Benn, Parliamentary Under-Secretary in the Home Office, indicated that the drafting in Clause 1(3) already took sufficient account of the individual defendant because the jury were invited to look at "all the circumstances".[27] Against that, however, Viscount Bledisloe QC argued that "'circumstances' means surrounding facts…not the peculiar characteristics of the individual" defendant.[28]

21. The Government agreed, in view of these concerns, to reconsider the formulation of Clause 1(3). On Third Reading, it introduced a set of consensual amendments, which received the support of the Opposition Front Benches in the Lords. If implemented, the amended test (now set out in Clause 1(1)(c)) will require the prosecution to prove that the defendant did "not reasonably believe" that the other party consented. In addition, new Clause 1(2) provides that:

"Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A [the defendant] has taken to ascertain whether B [the other party] consents."

22. When introducing the amendments, the Minister of State in the Home Office, Baroness Scotland of Asthal QC,[29] said that:

"…the revised version of the reasonableness test moves away from the concept of the "reasonable person" and requires the prosecution to prove that the defendant did not have a reasonable belief in consent. The test is supported by an explanation of the type of criteria to be used to determine whether the defendant's belief in consent was reasonable in relation to the alleged offence. The jury is directed to have regard to all the circumstances at the time, including any steps taken that the defendant may have taken to establish that the complainant consented to the sexual activity."[30]

23. In our view, the revised 'reasonableness test' for a defendant's belief in consent is both clearer and simpler than the original drafting. More importantly, it also addresses the concerns about the potential injustice of applying a "reasonable person" standard to all defendants, regardless of their individual characteristics. By focussing on the individual defendant's belief, the new test will allow the jury to look at characteristics—such as a learning disability or mental disorder—and take them into account. For these reasons, we support Clause 1.

Presumptions against consent and belief in consent

24. This leads us on to the presumptions in Clause 78, relating to consent and belief in consent.[31] As originally drafted, Clause 78 was probably the most confusing provision in the whole Bill. The Clause provided for two different kinds of presumptions—rebuttable presumptions (which shift the burden of proof onto the defendant) and conclusive presumptions (which determine an issue conclusively). The same clause was also drafted for two purposes: first, to guide the jury on the issue of consent and, secondly, to restrict the use of mistaken belief in consent as a defence to a charge. As a result, the drafting was cumbersome and attracted much criticism from judges and lawyers.[32]

25. During the course of this inquiry, Clause 78 has also been amended substantially and the presentation of the provisions is now much improved. In particular, the original Clause has been split into two (now Clauses 76 and 77) to separate the rebuttable from the conclusive presumptions.

The rebuttable presumption against belief in consent

26. If implemented, the presumptions will apply only in circumstances where the defendant used violence or threats of violence against the complainant or a third party, where the complainant was unlawfully detained, asleep or otherwise unconscious, or where the complainant was unable, because of a physical disability, to communicate consent (new Clause 76(2)).

27. As originally drafted, the presumptions in Clause 78 placed an 'evidential' burden on the defendant in relation to the issue of consent and a 'persuasive' burden on the issue of belief in consent. The difference between these two concepts is explained in Cross and Tapper on Evidence:

"The evidential burden has been defined as the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue. The persuasive, 'legal', or 'probative' burden has been defined as the obligation of a party to meet the requirement of a rule of law that a fact in issue must be proved or disproved."[33]

28. Therefore, under the original drafting, the defendant was required to rebut the presumption against a belief in consent by proving that he did believe in the other party's consent. This was far more onerous than the 'evidential' burden which applied in relation to the issue of consent. Furthermore, the task of proving a belief in consent was said to be made more difficult by the operation of the complicated test of reasonableness which (then) existed under Clause 1(3). Some argued that the combined hurdle was "insurmountable".[34]

29. Following a sequence of amendments, new Clause 76 now gives rise to an evidential presumption only, which applies both to consent and belief in consent.[35] Introducing the amendments, the Minister of State in the Home Office, Baroness Scotland of Asthal QC, explained that:

"In order for these presumptions not to apply, the defendant will need to satisfy the judge from the evidence that there is a real issue about consent [or belief in consent] that is worth putting to the jury. The evidence relied on may be, for example, evidence that the defendant himself gives in the witness box, or evidence given on his behalf by a defence witness, or evidence given by the complainant during cross-examination. If the judge is satisfied that there is sufficient evidence to justify putting the issue of consent to the jury, then the issues will have to be proved by the prosecution in the normal way.

If the judge does not think the evidence relied on by the defendant meets this threshold, he will direct the jury to find the defendant guilty, assuming the jury is sure that the defendant did the relevant act, that the circumstances in subsection (2) applied and that the defendant knew that."[36]

30. During our inquiry, some organisations argued that the list of circumstances giving rise to the presumption should be non-exhaustive or, alternatively, extended to include other situations, such as where the complainant is too drunk or drugged to give consent.[37] Others criticised the provision—and its interrelationship with Clause 1(3)—as complex, unfair and unworkable.[38] However, Hilary Benn, Parliamentary Under-Secretary in the Home Office, told us that the presumptions will be "an assistance to the jury in guiding them through the process".[39] He added that they are intended to "send out a very clear message that does shift the balance in favour of the complainant".[40]

31. We support the amended Clause 76. In our view, the circumstances which will give rise to a rebuttable presumption against consent or a belief in consent are all situations in which consent is generally absent. Accordingly, we do not find it unreasonable to require the defendant—in those circumstances—to show sufficient evidence to raise a real issue about consent, or his belief in consent, before the matter can be put to the jury.

Conclusive presumptions against consent and belief in consent

32. New Clause 77 sets out two circumstances in which it will be conclusively presumed that the complainant did not consent and the defendant did not believe in consent (Clause 77(2)). These arise where the defendant has induced submission to sexual activity, first by deceiving the complainant about the nature and purposes of the act[41] and, secondly, by impersonating another person known to the complainant (such as a husband or partner). In support of the (amended) Clause, the Minister of State in the Home Office, Baroness Scotland of Asthal QC, stated:

"The conclusive presumptions are based on existing statute and case law and we are satisfied that it is right that the new legislation should reflect that position."[42]

33. As originally drafted, the Bill also provided that it would be conclusively presumed that the defendant did not act in a reasonable way to resolve a doubt about consent (under Clause 1(3)) if he formulated his belief on the basis of something said or done by a third party. This gave rise to particular concerns, for example, Liberty believed that it would be "unduly onerous for defendants who are frequently in the position of finding they have very little positive defence to sex allegations other than "your word against mine".[43] In addition:

"The noble Lord, Lord Carlile [of Berriew QC] suggested that it would be unfair to impose a conclusive presumption in relation to the reasonableness test where the defendant was a person with a mental disorder or learning disability, who could not be expected to understand that a third party was deceiving him as to the truth."[44]

The Government has responded positively to these criticisms by removing this provision from the Bill.

34. We support the amendment to Clause 77, which we believe has addressed the key concerns about the conclusive presumptions. The amended Clause is now confined to two very specific (and indeed unusual) situations involving deception and impersonation, both of which reflect the existing law.

8   Home Office, Setting the Boundaries: Reforming the Law on Sexual Offences, July 2000, Vol I, p 9, para 2.1.1 Back

9   HL Deb, 31 March 2003, col 1098 Back

10   Jennifer Temkin, Rape and the Legal Process (OUP, 2nd Edn), p 30 Back

11   Home Office, Setting the Boundaries, July 2000, Vol I, p 15, para 2.8.5 Back

12   Criminal Justice and Public Order Act 1994, s 142, substituting s 1 of the Sexual Offences Act 1956 Back

13   Qq 3-4 Back

14   Q 5 Back

15   Q 6 Back

16   Q 7 Back

17   Q 9 Back

18   For more detail on the background to this issue, see Ev 63-69 (JUSTICE). For the key debates in the Lords, see HL Deb, 31 March 2003, cols 1061-1110 (Committee Stage) 2 June, cols 1049-1077 (Report stage) and 17 June, cols 669-678 (Third Reading). Back

19   Sexual Offences Act 1956, s 1 Back

20   [1976] A.C. 182, HL Back

21   Following the decision in Morgan, legislation was introduced to require that when a jury consider whether a belief was genuine, they have regard to the "presence of absence of reasonable grounds for such belief" : Sexual Offences (Amendment) Act 1976, s 1(2). Back

22   HL Deb, 2 June 2003, col 1060, Lord Falconer of Thoroton QC Back

23   Q 14, Peter Rook QC Back

24   See, for example, HL Deb, 31 March 2003, col 1065 , Lord Lloyd of Berwick Back

25   Ev 45 Back

26   HL Deb, 2 June 2003, cols 1073-1074, Lord Falconer of Thoroton QC Back

27   Q 129 Back

28   HL Deb, 31 March 2003, col 1107 Back

29   Baroness Scotland replaced Lord Falconer as Minister of State in the Home Office on the 13 June 2003, following the Government re-shuffle. Back

30   HL Deb, 17 June 2003, col 669 Back

31   The presumptions will apply to the offences of rape, assault by penetration, sexual assault and causing a person to engage in sexual activity without consent (new Clause 78). Back

32   HL Deb, 31 March 2003, col 1129, Lord Falconer of Thoroton QC. See also Ev 46 (Criminal Bar Association) and Ev 103-104 (Professor Jennifer Temkin). Back

33   Colin Tapper, Cross & Tapper on Evidence (Butterworths, 9th Edn), p 111 Back

34   During the debate in the Lords, Earl Russell said the test was "completely insurmountable and it is unreasonable to ask anyone to try to conduct it". HL Deb, 31 March 2003, cols 1073-1075. Back

35   At the time that we took evidence from Hilary Benn, Parliamentary Under-Secretary in the Home Office, the clause had been amended so that the rebuttable presumptions applied only to belief in consent and not to consent. See Qq 132 & 141. This was subsequently reversed by further amendment and the clause now applies (once again) to both consent and belief in consent. Back

36   HL Deb, 17 June 2003, cols 670-671 Back

37   See for example, Ev 100 (Rape Crisis Federation of England and Wales and Campaign to End Rape) Back

38   See for example, Ev 46 (Criminal Bar Association) and HL Deb, 31 March 2003, col 1132, Baroness Noakes (commenting on submissions by the Criminal Bar Association). Back

39   Q 142 Back

40   Q 140 Back

41   Lord Falconer explained that "for example, it applies when a doctor digitally penetrates the patient, telling her it is necessary for medical reasons when in fact it is for his own sexual gratification." HL Deb, 31 March 2003, col 1130. Back

42   HL Deb, 17 June 2003, col 672 Back

43   Ev 81 Back

44   HL Deb, 17 June 2002, cos 671-672 Back

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