APPENDIX 16
Memorandum submitted by the International
Centre for the Study of Violence and Abuse, University of Sunderland
We welcome the long needed and awaited new Sexual
Offences Act, however we have some concerns, which are set out
below:
STATUTORY DEFINITION
OF CONSENT
(S.77)
Section S.77 currently includes an extended
statutory explanation of the meaning of consent. This is to be
welcomed. However we would also like to see a statutory definition
of consent as "free agreement" as was recommended in
the Sexual Offences Review (Home Office, 2000).
Research has indicated that the lack of such
a definition has led to confusion and different conclusions being
drawn on similar facts in different cases,' (Home Office, 2000:10,
Temkin, 2000). Research on such changes from other common law
jurisdictions has shown that a statutory definition of consent
(for example in Victoria, Australia, where consent has been defined
as free agreement) is felt by the majority of judges to lead to
a more consistent approach and provide greater clarity with respect
to the law on consent (Heenan and McKelvie; 1997).
In our view the extended explanation set out
in S.77 is reasonably explicit both about the circumstances and
the state of mind of the person giving consent. However this should
be prefaced by the term "free agreement," since this
would underline a person's right to sexual autonomy. In this respect
the law needs to be fair not only defendants but to victims and
to acknowledge the values of current society based on human rights
principles of self-determination (Scottish Executive, 2000). It
thus needs to recognise the impact on persons whose bodily and
psychological boundaries have been violated through penile penetration
or other sexual acts, without their positive agreement to such
acts (Kelly, 2002). Because the act of rape and other sexual offences
fall under most definitions of torture, this means that if women
are not adequately protected by state actors and state procedures
then this would be inconsistent with the right to freedom from
torture and inhuman or degrading treatment or punishment (article
three of the Human Rights Act 1998).
Thus we would indicate an amendment as follows.
"For the purposes of this part consent will
be defined as free agreement—that is a person consents if
she or he agrees by choice and has the freedom and capacity to
make that choice."
In addition research from other jurisdictions
has shown that the meaning of consent needs to be further clarified
to underline principles of sexual autonomy (Henning, 1997; Heenan
and McKelvie, 1997).
This is exemplified from extensive research
with victims on their experiences of rape and sexual assault in
the UK (Lees, 2002) and indicates the need for further explanation
of what consent is not, as well as the statutory presumptions
against consent.
COMPLAINANTS' SILENCE,
LACK OF
RESISTANCE AND
LACK OF
INJURIES
Many victims of rape may remain silent and do
not say or do anything, because they are too frightened of what
the rapist might do if they protest or resist. Research has indicated
that such situations can apply to a range of different rape contexts,
including stranger, acquaintance and partner rape (Lees, 2002).
This is illustrated in the following case of acquaintance rape
where the victim, a prospective student had met the offender for
the first time when visiting a university.
"I went back to his room for coffee. I had
a kiss but said I didn't want to go any further. He told me that
`I'd asked for it' by accepting his invitation for coffee and
letting him kiss me. He said that I knew exactly what would happen
if I went back for coffee. I was scared he was going to kill me
and I physically froze. The whole experience lasted four hours.
He had hidden my clothes, locked the door and hidden the key."
(Lees, 2002:11)
Such research also shows that the fact that
a complainant had no physical injuries (including vaginal injuries)
is not an indication that she consented to rape. In many cases
women do not resist because of fear of being injured or killed
as is illustrated in the following case of ex-partner rape.
"He had attempted to kill me before in fits
of anger. The choice between dying and being [raped] is no choice.
He simply walked into my bedroom as I was getting into bed, put
his hands around my neck from the back and started talking about
his knife (which I knew he had—a Bowie knife). He was unhappy
and depressed, angry and aggressive. He tore my pyjamas off and
raped me. I had been hurt by him before—he had a dreadful
temper—the actual danger would only happen if I angered
him excessively. (Lees, 2002:15)
The research also indicates that drug-assisted
rape including alcohol, is a further situation where women may
be unable to verbally protest or physically resist (Sturman, 2000,
Cybluska, 2002). In these situations drugs act frequently act
as central nervous depressants (CNS) and can cause such symptoms
as muscle relaxation or paralysis, confusion and dizziness rendering
victims incapable of protesting or resisting.
DELAY IN
REPORTING
In addition the temporary memory loss caused
by drug assisted rape, frequently causes a delay in reporting
(Sturman, 2000). Research indicates that delay in reporting can
also be caused by other impacts of rape and sexual assaults including
post-traumatic stress disorder, which may mean that victims remain
in a state of shock and are unable to even acknowledge the rape,
for weeks, months or years following the attack (Tinsley, 2002).
Women may also delay in reporting the attack through fear of retaliation
and fear of disbelief and may only decide to report following
a supportive response by others (Kelly, 2002).
For these reasons we would strongly recommend
an additional section to S.77 of the bill as follows:
2. A person is not to be regarded as having
freely agreed to a sexual act just because:
(i) she or he did not protest or physically
resist;
(ii) she or he did not sustain physical injury;
(iii) on that, or an earlier occasion she
or he freely agreed to engage in another sexual act (whether or
not of the same type) with that person, or a sexual act with another
person;
(iv) she or he delayed in reporting the offence.
PRESUMPTIONS AGAINST
CONSENT S.78
We welcome the presumptions against consent
although we are very concerned are set out as an exhaustive list.
We strongly urge you to change this list to be clearly stated
as being a non-exhaustive rather than an exhaustive list.
THREATS OF
VIOLENCE OR
ANY FORM
OF HARM
We are also very concerned that presumptions
3a and 3b refer to only use or threats of immediate violence.
Research has shown that perpetrators or rape and sexual assault
frequently threaten future violence or other forms of harm to
the victim or members of the victim's family such as children.
This is particularly the case where rape has occurred in the context
of domestic violence (Hester et al, 2000, Kelly, 2002).
Moreover, where rape is perpetrated in the context of domestic
violence by a partner or ex-partner, the complainant's experiences
of past violence may also be a factor. The following case examples
illustrate some of these circumstances.
"He raped me several times soon after the
birth of my baby and when I had a caesarean section and was still
not fully recovered from this operation. He had threatened to
hit my six week old baby daughter if I did not comply on the first
occasion and because of fear of further harm to her I submitted
on other occasions."
"The first time he raped me he was hitting
me and punching me and I was shouting and screaming and my three
year old son was woken up and came into the bedroom and said `what
are you doing—what are doing to mummy,' so in order to protect
my son I just let him do it at other times even though I told
him I didn't want to have sex."
"He broke into my house and threatened that
he would abduct my two children from school if I did not comply."
Woman raped by ex-partner. (Harne, 2001)
RAPE IN
THE WORKPLACE
CONTEXT
In addition the research shows that women who
have been raped by bosses or work colleagues, may be threatened
by loss of their job or with other sanctions, if they do not submit
(Lees, 2002).
We therefore strongly recommend the following
amendments to 78, 3a and 3b:
3a. "The complainant submits because
of violence or threats of violence to that person or someone else.
3b. The complainant submits because of fear
of harm of any type to that person or someone else".
As has been indicated above, the research shows
that drugs and alcohol or both may incapacitate a victim to such
an extent that they are incapable of consent. In addition we also
strongly recommend that the phrase, "or so affected by alcohol
or drugs as to be capable of freely agreeing", is added to
S.78.3.d.
DEFENCES OF
"HONEST BELIEF
IN CONSENT"
The defence of "honest belief in consent"
has always been an issue of great concern since the ruling in
DPP v Morgan in 1976. The concern is that it is a very
easy defence to raise, but very difficult to rebut. There is also
the question of whether it is an "honest" defence—that
they honestly believed she was consenting, or a strategic one—one
that is being used as an "afterthought" (perhaps following
advice from their lawyer) to weave through rape law and come out
of the other side with an acquittal.
We are also concerned that there has been no
research commissioned in England and Wales to assess how often
this defence is used. Research in Australia suggests the "mistaken
belief" defence was used in 23% of cases (Law Reform Commission
of Victoria, 1991 (a), 1991 (b)), however the methodology of this
piece of research has been criticised. Gans (1997) suggests that
by re-coding the data using more appropriate methods at least
74%, rather than 23%, of the trials actually had at least some
element of the "mistaken belief" defence.
This lack of research in England and Wales is
significant because it is necessary to research how the subsections
regarding this defence will be interpreted, ie:
(a) a reasonable person would in all the
circumstances doubt whether B consents, and
(b) A does not act in a way that a reasonable
person would consider sufficient in all the circumstances to resolve
such doubt.
Concern is expressed around the term "reasonable
person", as the circumstances surrounding consent may be
considered differently by different people; most notably the differences
between male and female jurors. Age may also be a factor. Additionally,
because judges and jurors are not informed on how women may display
their non-consent, for example by "freezing" or keeping
quiet to not alert the children (as above) they may not be in
a position to properly assess what is "reasonable".
We recommend that if this defence is used then the jury should
be given information about the range of behaviours women may exhibit
when at threat of being raped. Alternatively, if this section
is taken into statute as it stands, then we recommend that research
is conducted to assess how it is being used and that amendments
made if required.
ANONYMITY FOR
CHARGED OFFENDERS
We are in agreement with the Government's view
that sex offenders should not be treated differently from those
charged with other forms of serious crime such as murder. Moreover
the research on serial rapists indicates that the publication
of the name of the offender can enable other victims who have
experienced assaults from the same offender to come forward and
report the crime to the police (Lees, 2002).
ADDITIONAL INFORMATION
I (Nicole Westmarland) would like to draw to
your attention that I am currently writing my PhD on Rape and
the Human Rights Act (due to complete Summer 2004).
March 2003
REFERENCES
Cybulska B (2002) Drug Assisted Rape. Journal
of Family Planning and Reproductive Health Care. Vol 28. No.3.
July
Gans, J. (1997) Rape Trial Studies: Handle with
Care, The Australian and New Zealand Journal of Criminology,
30, 26-35.
Harne L (2001) Violent fathering and its impact
on children. Unpublished paper Belfast SPA Conference, July
Heenan M and McKelvie H (1997) The Crimes Act
1991: An Evaluation Report. Victoria, (Aus) Victorian Law Reform
Commission.
Henning T (1997) Consent in Sexual Offence Cases,
Victoria, Women Against Violence. Vol.3.
Hester M, Pearson C, Harwin N (2000) Making
an Impact: Children and Domestic Violence. London, Jessica Kingsley.
Home Office (2000) Setting the Boundaries: Reforming
the law on sex offences. London.
Law Reform Commission of Victoria (1991 a) Rape:
Reform of Law and Procedure: Appendixes to Interim Report No 42,
Melbourne: LRCV.
Law Reform Commission of Victoria (199l b) Rape:
Reform of Law and Procedure, Report No 43, Melbourne: LRCV.
Lees 5 (2002) Carnal knowledge: Rape on Trial.
London, Women's Press. 2nd Edition.
Kelly L (2002) A Research Review on The Reporting,
Investigation and Prosecution of Rape Cases. London, HMC&CPSI.
Sturman P (2000) Drug assisted sexual assault:
a study for the Home Office under Police Research Award Scheme.
London, Home Office.
Tinsley H (2002) Rape: the victim's perspective.
Journal of Family Planning and Reproductive Health Care. Vol 28.
No.3. July
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