APPENDIX 26
Memorandum submitted by the Rape Crisis
Federation of England and Wales and Campaign to End Rape
INTRODUCTION
Rape Crisis Federation (RCF) and Campaign to
End Rape (CER) welcome the Sexual Offences Bill as an improvement
on the old laws, which are systematically failing to deliver justice,
especially to adult women. [88]
Insofar as the specific clauses upon which the
Home Affairs Committee invites our views we make the following
observations:
Clause 77—Statutory Definition of Consent
— We welcome clarification as to the
meaning of consent. It is vital that the law is clear, accessible
and easy to understand, demarking observable boundaries of acceptable
and unacceptable behaviour. Whilst we recognize that clause 77
is reasonably explicit, both about the circumstances and about
the state of mind of the person giving consent, we believe that
in an area of human behaviour where verbal and non-verbal messages
may be misinterpreted and where assumptions and mythology are
widespread, clause 77 falls short of achieving optimum clarity.
— We suggest that greater clarity could
be achieved in two ways:
1. by prefacing the explanation in
clause 77 with a simple definition: we favour "free agreement"[89];
and
2. by expanding clause 77 to include
an explanation of what consent is NOT.
— Research and our experience of working
with rape survivors have identified some specific situations which
arise over and again, and which cloud the issue of consent. These
include where complainants, through fear[90]
or as a result of drug or alcohol consumption[91],
remain silent, fail to struggle or otherwise protest. These factors
and the absence of physical indicators of a struggle, such as
vaginal bruising or other injuries can unfairly disadvantage complainants
in rape trials. Other factors, which have similar consequences,
are those which lead to delays in reporting: amnesia following
drug or alcohol consumption for example[92],
fear of reprisals—particularly in cases where the complainant
knows the assailant and fear of not being believed. Post Traumatic
Stress Disorder (PTSD) is the most common psychiatric outcome
after a traumatic event such as rape. Research indicates that
the symptomatology of such conditions (including shock, depression,
panic and anxiety) can also be responsible for delays in reporting.
[93]
— We therefore strongly recommend that,
for the avoidance of doubt, clause 77 should be amended thus:
(i) For the purposes of this part
consent will be defined as "free agreement"—
(a) a person consents if s/he agrees by choice,
and has the freedom and capacity to make that choice, and
(b) free agreement is not to be assumed on the
basis that the complainant:
(i) did not say or do anything; or
(ii) did not protest or physically
resist; or
(iii) was not physically injured; or
(iv) delayed in reporting the offence.
— We also favour, in line with legislation
in Victoria, Australia:
(ii) or, had on a previous occasion,
freely agreed to engage in sexual activity with the defendant.
— We believe the above amendment would
increase consistency in the application of the law, formalise
good practice and help to counter some common prejudices.
Clause 78—Presumptions about the absent
of consent
— We welcome the list of circumstances
in which consent is to be presumed absent. However, there is a
strong case for this being a non-exhaustive list, setting down
examples, rather than a definitive list attempting to anticipate
all the circumstances in which consent will be deemed to be absent.
We appreciate the arguments in favour of promoting certainty and
acknowledge that the list places a reverse burden on the defendant.
However, it is no more than an evidential burden and in such circumstances
a non-exhaustive list would not be unfair to the defendant or
incompatible with Convention rights. The legal burden of proof
remains on the prosecution throughout. Arguably a definitive list
deprives the law of flexibility whereas a non-exhaustive list
would have the advantage of allowing the courts to continue to
develop the common law when different circumstances apply.
— We therefore recommend that the list
is non-exhaustive.
— Research and our experience show
that perpetrators of rape and sexual assault commonly threaten
future violence or harm, and not just immediate violence. Also,
the targets of such threats include relatives, especially children,
of victims as well as the victims themselves. This is particularly
so where rape occurs in the context of domestic violence[94].
In addition, threats include other types of harm, not just violence:
threats of molesting or abducting children for example, and in
the workplace, threats of job-loss or demotion. [95]
— We therefore strongly object to the
inclusion in clauses 78(3)(a) and (b) of the word "immediate"",
to restrict the ambit of the violence feared; and, we also recommend
that clause 78 is expanded to cater for other types of harm. We
propose amendments along the following lines:
(a) any person was, at the time of the relevant
act or immediately before it began, using violence against the
complainant or another person, causing the complainant to fear
for her own or the other person's immediate safety;
(b) any person was, at the time of the relevant
act or immediately before it began, threatening the use of violence
or harm to the complainant or another person, causing the complainant
to fear that harm would befall her or another person, or that
she or another person would suffer violence;
(c) any person was, at the time of the relevant
act or immediately before it began, causing the complainant to
fear that an unlawful act would be carried out to her detriment
or to the detriment of another person;
Clause (a) covers the actual use of physical
violence by any person against the complainant or for example,
her child, which causes her to fear for her or her child's immediate
safety; (b) covers threats of violence towards the complainant
or her child, which puts her in fear (for herself or her child)
of violence either now or in the future. It also covers threats
of harm (such as threats to harass, alarm or distress her, to
abduct her child, or burn down her house) now or in the future;
(c) covers blackmail type situations where a boss threatens demotion
or job-loss for the complainant or for her husband, parent, or
child for example.
— We also recommend the amendment of
clause 78(3)(d) for the following reasons:
— We particularly regret the omission
from the list of presumptive circumstances, of the situation where
a person is too affected by alcohol or drugs (albeit voluntarily
consumed) to consent sexual intercourse. Whilst we welcome the
inclusion of the circumstance where the person is asleep or unconscious,
we believe that there is a point well in advance of unconsciousness
when a person may not have the capacity to consent. We remain
unconvinced that someone, for example, too drunk to walk home,
too drunk to resist, or too drunk to communicate effectively their
unwillingness to have sexual intercourse, will be adequately protected
in the absence of a rebuttable presumption. There is a commonly
held belief that women drink to loosen their inhibitions and that
consent to alcohol is consent to sexual intercourse. This makes
it doubly difficult to prove rape when the recreational, excessive
use of drink or drugs is a feature.
— Our recommendation in respect of
clause 78(3)(d) is therefore as follows:
"at the time of the relevant act, the complainant
was asleep, unconscious or too affected by alcohol or drugs to
give free agreement"
Clause 76—Offences against children
under 13
— We welcome setting the age of 13
as an age below which a child is deemed incapable of consenting
to sexual activity. We believe that the law should recognise that
children under this age are insufficiently mature, physically
and emotionally, to cope with the consequences of sexual activity.
THE DEFENCE
OF HONEST
BELIEF IN
CONSENT
— The concept of "honest belief"
in consent, a legacy of the House of Lord's controversial judgment
in the case of Morgan (1974), currently used as a defence
to rape, is easy to assert and almost impossible to refute because
there is no requirement in the present law for an "honest
belief" to be reasonably held. A rapist can therefore lay
claim to a completely absurd, irrational belief in consent—in
the face of clear protestations and resistance. If the prosecution
are unable to disprove his alleged honest belief, the jury have
to acquit—even where they are sure on the evidence, consent
was not given.
We vehemently oppose retaining a defence of
"honest belief" in consent. In our view, mistaken beliefs
in consent are just as easy to avoid as they are to assert and
a person seeking sexual intimacies should have the onus of ensuring
he has the consent of the other party. The focus in a rape trial,
as in any other criminal trial, ought to be on the legality of
the defendant's conduct and not on the propriety of the complainant's
actions. That said, we understand the argument that the law should
punish people not simply for what they do but for what they intend.
— We therefore welcome the introduction
in the Bill of external standards of reasonableness to test "belief"
in place of the current defence of "honest belief":
if a reasonable person would in all the circumstances doubt the
presence of consent and a defendant does not act in a way that
a reasonable person would consider sufficient to resolve that
doubt, he should be convicted of rape where all other elements
of the offence exist. We therefore fully support the jury being
able to consider the adequacy of measures taken by a defendant
to resolve doubts about consent.
CONCLUSION
— RCF's support work reveals that many
women who have been raped have little if any confidence in the
present system of justice. This is hardly surprising when the
attrition rate continues to fall and convictions are now at an
all time low of 7%.[96]
Women either feel so discouraged that they fail to report the
rape or they decide to withdraw their complaint: the corollary
is that many rapists go unchallenged. It is clearly imperative
that public confidence is restored through the implementation
of sexual offences, which are coherent, clear and fair—to
the complainant as well as the defendant. It is also imperative
that the attrition rate is redressed. RCF and CER commend the
government on many positive achievements within the Sexual Offences
Bill and, in principle we welcome and support it with much enthusiasm.
However, we regret that some of the clauses identified here remain
unclear and ill-defined.
March 2003
88 Home Office data shows that for cases tried in 2000
the highest acquittal rates in trials are for rapes of adult women,
when compared to both minors and adult men (59% for females over
16, 52% for females under 16, 52% for males over 16, 42% for males
under 16). Back
89
Home Office, Setting The Boundaries, Reforming the law on sex
offences Back
90
Lees S (2002) Carnal Knowledge: Rape on Trial. London Women's
Press. 2nd Edition. Back
91
Sturman P (2000) Drug Assisted Sexual Assault. London, Home Office. Back
92
ibid see also Cybulska B (2002) Drug Assisted Rape. Back
93
Tinsley H (2002) Rape: the victim's perspective. Journal of Family
Planning and Reproductive Health Care. Vol 28 No 3 July. Back
94
Hester M, Pearson C, Harwin N (2000) Making an Impact: Children
and Domestic Violence. London, Jessica Kingsley. Back
95
Lees S, op cit. Back
96
The most recent British Crime Survey findings indicate that 45%
of rapes are committed by current partners/boyfriends, with further
47% involving casual acquaintances (16%); dates (11%); family
friends, relatives or work colleagues (10%) and ex-partners (10%).
These rapes by known men, are however, still less likely to be
reported than those by strangers. op cit. Back
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