5. Memorandum submitted by Jo Lovett,
Child & Woman Abuse Studies Unit, London Metropolitan University
POINT 62, PAGE
14
"An offender's culpability for a sexual
offence shall be somewhat less if the offender and victim were
engaged in consensual sexual activity immediately before the offence
took place."
This proposal appears to be at odds with the
spirit of the Sexual Offences Act (SOA) 2003 and many of the general
principles the Panel seeks to uphold. Furthermore, no rationale
in support of it is presented, making it hard to see why and from
where it has emerged.
As recalled by the Panel, one of the stated
aims of the Sex Offences Review (SOR) is to ensure that penalties
better reflect the seriousness of the crimes committed. Since
there are no gradations of rape offences in terms of seriousness,
and following the lifting of the marital and male rape exemptions
in the 1990s, all non-consensual penile penetration is treated
as rape in English law. However, the suggestion of differentiating
cases where there has been prior consensual sexual contact seems
to detract from this, creating, by implication, a second-tier
offence. This idea has been extensively debated and rejected,
for example, in the Sex Offences Review which informed the SOA
2003.
This recommendation plays into the hands of
myths about uncontrollable male sexual urges, "miscommunication"
between the parties or misreading of "cues" about women's
sexual availability and the idea that because a woman has consented
on one occasion there is a greater likelihood that she will consent
again. It also flies in face of attempts to promote understanding
of communicative sexuality and the protection of sexual autonomy
enshrined in the SOA 2003 and the recent Home Office campaign
on consent. Consent to one form of sexual intimacy does not entail
or imply consent to another and, equally, consent to sex itself
can be withdrawn at any time should the woman change her mind,
regardless of her reasons. Indeed, violation of sexual autonomy
is one of the cornerstones of the Panel's framing of the "harm"
of sexual offences, yet this proposal begs the question of whose
sexual autonomy is to be protected.
It is also well known that sexual offence cases
are disproportionately under-reported compared with other crimes
and that stigma and self-blame feature strongly in the responses
of victims who do not report. If the notion is upheld that consent
to some level of intimacy on the same occasion lessens the offender's
culpability, victims will be further dissuaded from coming forward
for fear of being blamed for contributing to the sexual assault
and that their assault will be treated less seriously.
With regard to culpability and harm, in cases
of sexual assault by intimates (an obvious category where there
will have been prior sexual contact, potentially including immediately
before the alleged assault), numerous research studies show that
the harm experienced by the victim is often equal or even greater
to that experienced when the perpetrator is a stranger. Such evidence
was presented as part of the SOR, and almost certainly informed
the Panel's 2002 guidance that rape by an acquaintance or partner
should be treated as seriously as rape by a stranger. This is
due to the abuse of trust involved and, especially where there
is a history of domestic violence, the fact that sexual assaults
can be particularly brutal. Conversely, the current proposal implies
a lesser degree of harm.
June 2006
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