An academic piece I wrote in 1999. I was very young when I wote this as part of the Sociology component of my BA (Hons) in Philosophy and Sociology, but I wonder… How much of this has changed today?
Title: Is it fair to argue that the difficulty in obtaining convictions for rape is due to the judiciary and legal profession condoning violence against women?
1: Introduction.
“Rape is a man’s right. If a woman doesn’t want to give it, the man should take it. Women have no right to say no. Women are made to have sex. It’s all they are good for. Some women would rather take a beating but they always give in; it’s what they are for.”
“Rape gave me the power to do what I wanted to do without feeling I had to please a partner or respond to a partner. I felt in control, dominant. Rape was the ability to have sex without caring about the woman’s response. I was totally dominant.”
(Scully and Marolla 1985: 261, 259; as cited in Smart, 1989, pp31).
It has long been recognised that rape is an aspect of gender-based violence and this has formed a specific site of inquiry for feminism. Rape, as with all gender-orientated violence, is the expression of sexuality used as a form of power and desire to humiliate, rape controls women through the instillation of fear, irrespective of age race or class. This question throws up many questions, two of which are, firstly, is it possible for the law to evade the feminist challenge? And, secondly, is it fair to argue that the law sees and treats women the way men see and treat women? According to Smart and Brophy (1985), feminist engagement with law is not new. It is possible to make the argument that the original concentration of the earliest women’s movement in the nineteenth century was law — because of law’s oppressive restrictions on women, it contributed to a unified movement of resistance, but more ironically it also emerged at that time to offer the main answer to women’s oppression. Another form of domination is practised by the courts where men, defend this right that men hold to power over women. The judicial ‘rape’, where a woman’s reputation is put on trial by the court is, according to many victims, as humiliating as the actual rape. In some respects it is worse, it is more deliberate and systematic, more subtle and more dishonest, giving the appearance of being in the name of jusice. When rape is examined relative to other crimes, glaring inconsistencies (some would argue injustices) become more apparent. For example, rape is not the only crime in which consent is a defence, but it is the only crime that has required the victim to resist physically in order to establish non consent. Also, rape is not the only crime where previous relationships are taken into consideration by prosecutors in screening cases — but is considering such previous relationships in rape cases any different, and less justifiable, than considering it in cases of assault?
Looking at the criminal statistics for the year 1995 in England and Wales, it was recorded that a total of 30, 274 sexual offences, of which 4, 986 rapes of women (compared with one hundred and fifty rapes of men). Sexual offences taken as a whole amounted to just under ten per cent of the total recorded violent crimes in 1995. In terms of convictions, in 1995, five hundred and eighty seven offenders were either found guilty or cautioned for rape of a woman; 3,321 offenders were found guilty or cautioned for indecent assault on women. Sue Lees’ own findings were that seven out of ten defendants had been found not guilty of rape, and another case was abandoned, during her research, Lees came to see these trials as a cruel hoax, an odeal that is equivalent to a second rape by the judiciary and legal profession which functions to condone violence against women, ideologically reinforcing the relations of domination and subordination. In three trials the defendant was found guilty of a lesser charge than rape, either buggery or indecent assault, for which he was given a short sentence or in one case set free. Lees also conducted an analysis of fifty-two case records of cases heard between June and September 1988, which revealed a similar picture to her own smaller sample, ten of these defendants pleaded guilty. Of the remaining forty-two who pleaded not guilty, only nine were convicted of rape (twenty-three per cent). This figure is a higher acquittal rate than for any other crime and is similar to Wright’s (1984) findings that only seventeen per cent of those arrested of 204 cases he followed up were found guilty of rape.
(Sue Lees, Ruling Passions, pp54, 1997).
In this project, I will examine how the judiciary and legal profession operates when a rape case comes to court, and the areas in the law that are put into practice. I will then discuss in my conclusion whether or not it is fair to argue that the difficulty in obtaining convictions for rape is due to the judiciary and legal profession condoning violence against women.
2: Tradition and Trends in the Legal System.
The legal system is embedded in tradition, it appears to me to be an indisputable fact. The picture of the legal professions in the United Kingdom, Australia and Canada is one that is generally a male, white, middle-class institution. In England, constructive attempts are being made to redress the imbalance between gender. The Policy Studies Institute undertook research in 1995 on behalf of the Law Society’s research and policy planning unit. The latest research confirms that sexual and racial discrimination still remains. In 1995, of 63,628 practising solicitors in England and Wales, only 18,417 were women. When figures for partnerships are examined, the Young Women Lawyers group have found that only twenty-five per cent of new partners in 1995 were women — this is a drop from 1985 when forty-four per cent of new partnerships were given to women. At the Bar, the Bar Council has endorsed a new ‘equality code’ which is aimed at tackling discrimination within the profession (The Times, 14 November 1995; As cited in pp264–265 of H.Barnett, 1998). The absence of a profession which is balanced on gender lines has unavoidable results for women who find themselves dealing with the law. It could be argued that the continued dominance of the profession by middle-class, middle-aged, white males — the majority of whom are conservative in outlook ensures the continuing of the traditional stereotypical attitudes to women.
3: How The Law Defines Rape.
The traditional way of defining a crime is by describing the prohibited act (‘actus reus’) committed by the defendant and the prohibited mental state (‘mens rea’) with which he must have done it. Lawyers ask such questions as what did the defendant do? And, what did he know or intend when he did it? The definition of rape concentrates on penetration and takes the attention away from the life-threatening experience of rape as described by complainants. There are two different images of rape, the male judicial view based on the law as it stands, and the woman’s view based on her experience of the rape. According to the judicial view, rape is defined as penetration, vaginal or anal, by the man without the consent of the woman, or does not care whether she consents or not (Section 1 Sexual Offences Act 1956; as amended by section 142 of the Criminal Justice and Public Order Act 1994). Women describe rape as a life-threatening event, as sexual coercion aimed to humiliate, in which their main concern is to survive.
Sue Lees argues that the focus should be on what evidence can be produced that she consented, what led him to believe she was willing, rather than on whether she actually fought, where many women see their best chance of survival as submitting to the attack or are simply frozen with fear. Men can get away with arguing that the woman enjoyed penetration, even when she denies it and describes the experience as terrifying. Even when defendants walk off, leaving a woman on waste ground or in a lift shaft in the middle of the night, or the woman runs half clothed into the street, these events are not considered to be relevant to her account because the whole focus is on penetration (Ch.7, Smith, 1993).
3.1: Mens Rea.
In the current legal system, a man who claims that he did not realise that the woman was not consenting to sex could argue that his mistake of fact should acquit him because he lacked the required intent or ‘mens rea’ as to the woman’s required non consent. American courts have altogether abandoned the ‘mens rea’ or mistake inquiry as to consent, choosing instead a definition of the crime of rape that is so limited that it leaves little space for men to be mistaken, reasonably or unreasonably, as to consent. The House of Lords, has confronted the question directly and, has restricted the crime of rape to men who act carelessly, this allows the unreasonably mistaken man to avoid conviction. Estrich argues that the American courts’ refusal to confront the ‘mens rea’ problem works to the disadvantage of the victim. So that men can be protected from unfair convictions, American courts end up defining rape with excessive restrictiveness. The English approach, although clearer, inclines toward an unduly restricted definition of the crime of rape. In terms of ‘mens rea’, the question is whether negligence is enough, in other words whether the defendant should be convicted who claims that he thought the woman was consenting. As far as mistake-of-fact is concerned, the issue is whether a mistake as to consent must be reasonable in order to acquit the defendant.
When it comes to defining the crime of rape, most American Courts have left out ‘mens rea’ altogether. For example, in Maine, the supreme judicial court has held that there is no ‘mens rea’ requirement at all for rape (State v. Reed, 1984; Estrich in Smith, 1993). To treat what the defendant intended or knew or even should have known about the victim’s consent as irrelevant to his liability seems like a good result to both prosecution and complainant, but the experience proves it is not. To decide not to look into ‘mens rea’ leaves two options, the first would be to turn rape into a strict liability offence where if there is no consent, the man is guilty of rape whatever he intended; secondly, defining the crime of rape in a limited way so that it would be difficult for any man to be convicted where he was truly unaware or mistaken as to non consent. According to Estrich, put into practice, abandoning ‘mens rea’ creates the worst of all possible worlds, where the trial becomes an inquiry into the guilt of the victim. This results in a judicial system intending to protect against unjust conviction, despite the danger of injustice to the woman in the particular case.
American courts may have ignored the issue of ‘mens rea’ or mistake-of-fact, but the British courts have confronted the issue, but this suggests a restrictive understanding of criminal intent in cases of sexual assault. The focal point of the debate in Great Britain was the House of Lords’ decision in Director of Public Prosecutions v. Morgan (Director of Public Prosecutions v. Morgan, 1976; Ch.7, Smith, 1993), where the certified question was: “whether in rape the defendant can properly be convicted, notwithstanding that he in fact believed that the woman consented, if such belief was not based on reasonable grounds.” The majority of the House of Lords answered the question in the negative. The Heilbron Committee was created to review the controversial Morgan decision. The Committee’s recommendation, established in 1976, stuck to the Morgan approach in the requirement that at the time of intercourse the man knew (or at least was aware of) the risk of non consent but provided that the reasonableness of the man’s belief could be considered by the jury in determining what he in fact knew. In situations where a “reasonable man” would have known that the woman was not consenting, most defendants will face great difficulty in arguing that they were honestly mistaken as to the woman’s consent. The House of Lords, in the Morgan case, held that negligence was not sufficient to establish liability for rape, but in spite of this upheld the convictions on the grounds that no properly instructed jury in the circumstances of that case could have concluded that the defendants honestly believed that their victim was consenting. In a similar English case decided shortly after Morgan, an English jury concluded that the defendant had been negligent in believing, honestly but unreasonably, in the wife’s consent. On the authority of Morgan, the court held that the defendant therefore deserved acquittal (Regina v.Cogan; Ch.7, Smith, 1993).
The traditional argument against negligence liability is that punishment should be limited to cases of choice, for the reason that to punish a man for his stupidity is unjust and as far as deterrence is concerned it is not effective, this means a man should only be held responsible for what he does knowingly (or at least while aware of the risks involved). As one of Morgan’s most respected defenders put it: “To convict the stupid man would be to convict him for what lawyers call inadvertent negligence — honest conduct which may be the best that this man can do but that does not come up to the standard of the so-called reasonable man. People ought not to be punished for negligence except in some minor offences established by statute. Rape carries a possible sentence of imprisonment for life, and it would be wrong to have a law of negligent rape.” [Professor Glanville Williams in a letter to The Times (London), May 8, 1975, at 15, Col.6; as cited in S.Estrich in Smith, 1993].
3.2: Force and Threats.
According to Estrich, there are two views of force in human relations. The first understands force as being when hit, to resist is to hit back — this is the definition of force traditionally enforced in rape cases. A second understanding of force, not acknowledged in the law of rape, recognises that bodily integrity means more than freedom from the force of fists, that power can be exercised without violence. In the case of the defendant threatening his victim with a deadly weapon, beating her, or threatening to hurt her, and then proceeding immediately to have sex, few courts have difficulty finding that force is present, but when some time elapses between the force and intercourse, when the force is more of the variety considered “incidental” to sex, or when the situation is threatening but no explicit threat of harm is communicated, “force” as defined and required by the criminal law may not be present at all. In such cases, the law fails to recognise, let alone protect, a woman’s interest in bodily integrity.
A distinction between the “force” incidental to the act of intercourse and the “force” required to convict a man of rape is drawn by courts, the distinction would seem to require the courts to define what additional acts are needed to constitute prohibited rather than incidental force. This is where the problems arise. For many courts “force” leads to an inquiry identical to that which informs the understanding of consent, both serve as replacements for a ‘mens rea’ requirement. Force is required to constitute rape, but force (even force that goes far beyond the physical contact necessary to accomplish penetration) is not itself prohibited. Instead what is required (and prohibited) is force used to overcome female non consent. The prohibition is defined in terms of a woman’s resistance. In other words, “forcible compulsion” (Ch.7, Smith, 1993) becomes the force necessary to overcome reasonable resistance. When the woman does not physically resist, the question becomes then whether the force was sufficient to overcome a reasonable woman’s will to resist. Prohibited force turns on the judge’s evaluation of a reasonable woman’s response.
3.3: Consent.
Consent has long been viewed as the most important concept in rape law, or the idea of female consent. Non consent has traditionally been a required element in the definition of a number of crimes, including theft, assault and battery. With this in mind, rape may be the most serious crime to encompass a consent defence, but it is not the only one. Rape is unique in the definition which has been accorded to consent, that definition makes clear that the purpose of the consent rule is not to protect female autonomy and freedom of choice, but to assure men the broadest sexual access to women. As far as sex is concerned, the common law tradition perceives women ambivalently at best — even when not intentionally dishonest, women cannot be trusted to know what they want or to mean what they say. The justification for the central role of consent in the law of rape is that it protects women’s choice and women’s autonomy in sexual relations. Or, as one leading commentator put it: “In all cases the law of rape protects the woman’s discretion by proscribing coitus contrary to her wishes.” Not exactly. The law does not protect the woman from “coitus contrary to her wishes” when there is no “force”. Secondly, the definition of non consent requires victims of rape, unlike victims of any other crime, to demonstrate their “wishes” through physical resistance (Ch.7, Smith, 1993).
4: Women’s Experience of the Legal System.
To highlight the difficulties in obtaining convictions for rape it is necessary to understand what happens once a case of this kind goes to court. After a preliminary hearing in magistrates courts, cases are sent up to the higher court which often takes over a year, this means that women have to give evidence a year after the rape and relive the ordeal again. Each rape case lasts about four or five days and the complainants evidence usually lasts a whole day. The court system in Britain is old-fashioned to the extreme, records are stored in a vault in the cellars, and courts number one and two are vast nineteenth century galleries, with high chapel-like ceilings, the judge is placed up high, and this is the setting in which women who have been raped have to give evidence. The other courts are smaller but the atmosphere is still very formal, aided by the fact that the judge wears a wig and is decorated in red and ermine dress (Lees, Ruling Passions, 1997).
4.1: The Judge and Jury.
There are many ways in which the odds are against the complainant. There is evidence that jurors find many of the court procedures bewildering. Jurors are often said to complain that they could have done a better job if they had understood the trial procedure better, judges do not clarify this. Many jurors are unaware of the pressure many women are under to drop cases or how long it has taken for a case to reach the Crown Court. Judges sometimes mislead juries into believing that it is up to the woman complainant whether or not the case comes to court and do not inform them of how few cases reach court at all. It is well documented by victimisation studies (Jones et al., 1986; as cited in Lees, 1997) and figures from London Rape Crisis Centre (1989; ibid) that rape is one of the most under-reported serious crimes and many women do not tell anyone until years later. Out of all reported rapes only one in ten of the women who go to rape crisis centres go on to make a complaint with the police, yet the police still do not record every case as a crime — between thirty to forty per cent of cases are ‘no-crimed’. Few women even report sexual assaults to the police: in a survey conducted at Cambridge University, it was discovered that one in five of 1500 students surveyed had been victims of rape or attempted rape and one in nine had been raped, only one in fifty had told the police (Public Eye, 1992; as cited in Lees, Ruling Passions, 1997, pp56].
Judges often openly state that it is too easy for women to bring cases to court, making the implication that it is their decision to do it. In an example given in Lees’ Ruling Passions (pp56, 1997), a judge said: “It is easy for women to make false allegations of rape but difficult for a man to refute them”. It is easier for men to get away with sexual assault when considered that although it may be easy to make false allegations, it is very difficult to take a case of sexual assault to court and it is not the woman’s decision to do it (it is not the decision of the police alone); also, the woman will have spent hours (even days) under police questioning and will have had a thorough medical examination, she is likely to have had pregnancy and venereal disease testing, she may have spent hours at the police station involved in an identification parade, she will have gone to the magistrates court (lower or preliminary court) and she may have been threatened by the alleged defendant (or his friends). Only forty per cent of the cases go to court at all and only one in four of the defendants who plead not guilty are convicted. In the United States, conviction rates are also low, according to the Federal Bureau of Investigation (FBI) Statistics, of every one hundred reported rapes, only sixteen per cent of the accused persons are actually convicted of rape (Steketee and Austen, 1989; as cited in Lees, Ruling Passions, pp56, 1997).
4.2: Court Procedures.
Court procedures mean the trial often goes in favour of the defendant, making it very difficult for jurors to convict, regardless of how convincing the evidence is. This is because of the other factors that can be introduced and often involve attacks on the woman’s reputation, not just her sexual history but all kinds of irrelevant factors relating to her past are discussed. Some lawyers have recognised the fraudulence of these methods and refuse to defend rapists who insist the woman consented. The reason for their refusal is because they object to the way in which rape cases are defended and believe the procedures in these cases are needlessly stressful for women. Also, many of their clients are victims of male violence so it is said to present a conflict of professional interest. The prosecution barristers fail to retaliate against the myths held about women and, Lees (1997) argues they may have them too.
Jurors are sometimes confronted with information about the woman’s character which they assume is relevant to the case because it has been presented to them, meaning they can only deal with the conflict between the doubts given by the defence and the need to find the defendant guilty beyond any reasonable doubt by failing to reach a decision. A result of this is a retrial which the complainant often cannot face going to and reliving the painful details again, if a decision cannot be reached on the second retrial the defendant goes free. Forensic evidence is often ignored by the jury because defence lawyers can make it difficult for a jury to bring in a guilty verdict. The complainant is a prosecution witness and cannot consult with the prosecution counsel, and may not know who is who, the defendant has his own representation and is allowed to consult with them beforehand, this is to prevent the briefing of witnesses. For the jury, this means there is confusion about the order in which evidence is heard because normally in trials the prosecution presents their case, and witnesses are questioned by the defence, who then presents their case. Confusion also occurs when the defence starts to make contradictory allegations after the witnesses have given evidence and are not available to answer them. This is called a ‘contest’ system of trials where each of the witnesses appear for one side or the other and each advocate must have a turn at questioning them. Evidence from a witness can be contradicted hours later when the witness is not available to be cross-examined. This is a major flaw of the adversarial system of justice and places strain on the jury to remember what was said. This can lead to problems in rape trials as it gives an advantage to the defence who can contradict what witnesses argued without their response. Relevant questions are not asked and the character of the defendant is rarely challenged in the same way as the complainant’s, she is not allowed to see her statement.[1]
In the cases Lees attended jurors were not encouraged to come to a verdict, and it was not explained to them what would happen if the jury twice fails to come to a decision, the jury do not know they are participating in a retrial. In one case Lees attended after the jurors had spent three or four hours deliberating and had failed to reach a consensus, they were called back to court, and the judge told them that because they failed to reach a unanimous verdict, they could settle for a majority verdict which he would give them half an hour to try and reach. When they returned after failing to do this they were dismissed by the judge instead of insisting that they should spend more time deliberating, they were told not to worry as there could always be a retrial. They were not encouraged to come to a decision, unlike in a murder trial, where juries are often put up overnight if they cannot easily reach a verdict. This situation is not uncommon and very little of the cases Lees attended went on after 4.30pm. Failure to reach a verdict was the outcome in four of the ten trials Lees attended. Out of the retrials, one woman could not face another humiliation and did not turn up, and in another, the jury again failed to reach a decision, while in the last two retrials, the defendant was found guilty.
The Crown Prosecution Service (CPS), led by the Director of Public Prosecutions, was set up as an independent body in 1985 to separate the prosecution from the investigatory police role. There are thirty-one chief crown prosecutors under whom are crown prosecutors who are barristers or solicitors. Because it has been starved of funds from the start, and started at a fifty per cent of its proposed amount of lawyers there has been bureaucratic delays and has been criticised for the poor calibre of staff it has recruited, largely because of inferior rates of pay compared to independent barristers. The resignation of the Head of Public Prosecutions, Sir Allen Green, in 1993 for alleged kerb crawling did not help its image. The task of the CPS is to continue criminal proceedings only when there is a realistic prospect of conviction or when it is in the public interest to prosecute. Victims should have the opportunity to work more closely with the Crown Prosecution Service barrister.[2] In rape trials the prosecution rarely presents a convincing case for the complainant.
4.3: The “Second Rape”.
The rape victim is made to describe in intimate detail every part of her body that was assaulted, to describe these details implies the woman is sexually promiscuous, it could be for this reason that women find being cross-examined an ordeal. The victim is likely to be mercilessly cross-examined about every aspect of the assault, how long every move lasted, about her lifestyle, relationships and (at the judge’s discretion) her past sexual experience. It is also implied that she has lied, invented everything and even enjoyed it, tactics are used to discredit her character and every word but the defendant does not even have an obligation to take the stand. Finally, as he is three times more likely to be set free than convicted, she is likely to emerge from the ordeal with her own credibility and reputation undermined by the jury’s dismissal of her evidence, there is also the fear that the defendant will come after her again to punish her for taking the case to court. Women who have been raped all agree that it is an experience from which they never recover (Lees, Ruling Passions, 1997).[3]
4.4: The Corroboration Warning.
One main barrier to gaining convictions in rape cases is the belief that rape can never be corroborated. Because the act takes place in private and rests on the presence or absence of the woman’s consent, it is argued that independent corroboration is impossible. This is not always true as trials often rest not just on the question of consent but on two accounts of what happened. Evidence to back the man or woman’s story is given but is often not treated as corroborative. For example, in one case a defendant said he had never been on the wasteland where the complainant claimed rape had taken place, but a can of beer with his fingerprints on it was found close to where the grass had been flattened — the prosecution did not emphasise this as corroborative evidence.
The woman will usually show signs of distress or other psychological reaction, but this is seen to be suspect. In one case several police officers, including a police surgeon, gave evidence that the woman was shaking with fear and distress, tears were streaming down her face, she wanted to wash herself frequently and was afraid afterwards to go out alone. They all agreed she was in acute distress and showing every sign that she was suffering from what has been identified as the rape trauma syndrome — the prosecution counsel failed to mention her distress in his summing up (Lees, Ruling Passions, 1997). The prosecution often fails to question the defendant’s view of women and why the woman has gone through all the agony of reporting the rape to the police, living with the anxiety for at least a year after the alleged offence if her agony is all faked. Determining factors considered to be socially respectable include: virginity, marital status, class, race, employment, housing, past sexual experience. Most of the women in the trials Lees sat through were unattached, only one was married, over half were living alone in bedsits and the rest with children, they were mostly working class, often working in low paid jobs.
4.5: The Woman’s Previous Sexual History And Lifestyle.
The question of whether a woman has had sexual experience outside marriage is frequently raised as a measure of her credibility. The Sexual Offences (Amendment) Act (1976)[4] precluded such questioning about the sexual past of the victims, except at the discretion of the judge. In two cases in Lees research, the judge used his discretion to allow the defence to focus on the woman’s past sexual history, one judge himself questioned the woman about her sexual experience in the absence of any application from the defence, and defence counsel on one occasion conducted improper cross-examination without intervention from the trial judge. A woman who has been a drug addict in the past, or who smokes cannabis, is particularly at risk of having her credibility undermined, being homeless and on social security came up in one of Lees’ cases and was used to imply that the complainant had ‘asked for it’, lack of marital status has also been emphasised. A complainant’s lack of contact with her children’s father was also used as evidence for one woman ‘being embittered towards men’. (Lees, pp65, Ruling Passions, 1997).
4.6: Powers of the Defence.
The defence can employ solicitors to question relatives and neighbours of the woman for information to use against her in court. In one case defence solicitors had called on the woman’s mother, who had not known about her daughter’s rape, as well as spying for several days outside her own house (Lees, 1997).
4.7: Court of Appeal Decisions.
There is some evidence that convictions can be quashed on appeal on very questionable grounds. In 1986 a group of paratroopers was convicted of indecent assault. On appeal their sentences were drastically reduced on the grounds that the victim was ‘dissolute and depraved’ and the paratroopers were described by the judge as ‘fine men and good soldiers who had thrown away their careers for activity, albeit disgusting, that lasted for only minutes’ (Temkin 1987; as cited in Lees, 1997). In another appeal case a man who was convicted of raping a 16-year-old girl on 10 July 1989 and sentenced to seven years’ imprisonment won his appeal which was heard in February 1991. Three Appeal Court judges ruled that the original judge had misdirected the jury by laying too much stress on the girl’s distressed state after the alleged assault (The Guardian, 15 September 1989; ibid). Not much is known about decision making with regard to appeals in sexual assault cases, but most of the convicted men in Lee’s (1997) sample planned to appeal, preliminary evidence indicates that appeal courts are reducing sentences and overturning convictions of men convicted of rape by juries (Temkin1993; as cited in Lees, 1997).
4.8: False Allegations.
The focus of rape trials is to decide if the woman is making a false allegation. In the conduct of trials she appears to be more on trial than the accused. It is argued that complainants allege rape through fear of admitting to their boyfriends that they had been unfaithful and enjoyed making love with someone else, or that they are acting in revenge for being jilted or that they do not understand the difference between fact and fantasy. Temkin (1987) points out that there is no evidence that fabricating allegations happened more often in rape cases than in other types of crime (Lees, pp67, 1997).
5: Views of Legal Practitioners — Their Response.
For the most part, objections from Feminists, the complainants, and some lawyers as to the way women are treated during rape trials is largely down to when sexual history and sexual character “evidence” is relevant and should be allowed. Brown et al (1993), noted that there is very little agreement among ‘practitioners’[5] of law as to when and why evidence is relevant, this is even within specific ranks. An interesting remark in Brown et al’s (pp106, 1993) piece is a one about a judge made by an interviewee of a lesser legal status: “a professional trial judge would daily hear evidence which sometimes you throw out of your mind. It is a normal exercise.” This quote could be taken two ways, but it was actually intended to demonstrate that a Judge does not need protecting from irrelevant or prejudicial evidence to the same extent as juries do. Judges in the same study said on the subject of the relevance of sexual history evidence, that they were wary of ‘diluting’ evidence and, that they were of the belief that both they and the jury were entitled to hear the full “story” — it would be “artificial for the jury to decide without having the background” (pp106, Brown et al., 1993). There were also wide-ranging views on what was actually happening in the courtroom with regard to sexual character attacks and the use of sexual history evidence, the majority of law practitioners accepted that such evidence could cause harm, many did not perceive it to be a problem in this area- this was largely because they considered it to be a rare occurrence.[6] The respondents made the distinction between the Judge and Jury with regard to how they see such information. A Judge was quoted as saying: “Common law has recognised that if a person is of bad repute, then there is a possibility that it could relate to credibility, and therefore it is something to be borne in mind by someone assessing that witness’s credibility” (pp108, Brown et al., 1993), if the evidence was irrelevant it was up to the prosecution to object to such lines of questioning. An Advocate explained that if the woman’s sexual character was attacked he would not object, but address the jury directly in the summing-up. On the issue of whether or not a piece of information about the complainant should be excluded if it was highly prejudicial and only of slight relevance to the case, there is no obvious requirement or power to do so in the legislation itself and most practitioners seem to support this. Because of the severity of the crime of rape and the requirement to prove the absence of consent, the rape trial will always be an ordeal. In its Report on Sexual Offences (pp93, Temkin, 1987), the Criminal Law Revision Committee concluded that, while certain adjustments to it may be a good idea, the law of rape as presently constructed was basically sound.
6: Conclusion.
In drawing to my conclusion, it is clear that there is a difficulty in obtaining convictions for rape, the argument that the judiciary and legal profession does not condone violence and that the problem is because rape is a serious crime and is difficult to prove may seem like a valid one, and it could be said that it is not the problem of the presiding Judge as he (or she) is there to be impartial and act on the law as it is written. This, does not explain or deal with the difficulties that appear to have been proven with particular Judge’s reinforcing a clear problem with the law by summing up with old-fashioned and negative attitudes towards women. Judicial ambivalence towards the issue of consent was apparent in the direction to the jury by Judge Wild in 1982 (Patullo, 1983; 18–21; as cited in pp35; Smart, 1989): “Women who say no do not always mean no. It is not just a question of saying no, it is a question of how she says it, how she shows and makes it clear. If she doesn’t want it she only has to keep her legs shut and she would not get it without force and there would be the marks of force being used.” The solution to the problem of the how the law is written and the interpretation lies in reforms that could be made and are long overdue, solving the problem of a prejudiced Judge would not be so easy. Research into the operation of the Michigan Criminal Sexual Conduct Act suggests that the ordeal of rape victims has been reduced as a result of the legislation being reformed, this was mostly due to the reforms limiting the use of sexual history evidence (Marsh, Geist and Caplan, p.68, 1982; as cited in Temkin, pp157, 1987). It has been found, however, that the Act has not had much of an impact in changing the attitudes of criminal justice officials and, police officers showed a concern with false allegations and lie detector tests were still used.
6.1: The Difficulty of the Law.
A study in England and Wales of rape trials was conducted by Zsuzsanna Adler (1987), at that time, both the conviction rate and length of sentence were very low, the average sentence for convicted rapists was only two years. She found that recent amendments to the sexual offences (Amendment) Act 1976, intended to avoid cross-examination of the victim about her previous sexual history, had been largely ineffective as this was still allowed at the judge’s discretion, which was given in sixty per cent of the trials she attended (Lees, pp55, 1997). It has also been established in another study that of 45 rape trials, an application was made in 40 per cent of cases. The Official Home Office Statistics indicate that only a small proportion of reported rapes result in a conviction, although the number of reported rapes has more than doubled between 1985 and 1993 the conviction rate for cases reported to the police according to Home Office figures has decreased from twenty-four per cent in 1985 to only 8.6 per cent in 1994 (Home Office Statistics, 1994; as cited in Lees, pp72, 1997).
6.2: If the difficulty lies in the law, how can it be remedied?
For Estrich (Ch.7, Smith, 1993), the law can make a difference, but the solution is not to write the perfect statute. While some statutes can be put into practice more restrictively than others, there is no “model statute” solution to rape law, because the problem has never been the words of the statutes but in the interpretation of them. If the difficulty is to be remedied it can begin with how terms like “consent”, “will” and, “force” are understood. Some of those who have written about rape from a feminist perspective make the argument that only a political revolution can redress the balance with regard to the traditional approach to rape, that most of what passes for “sex” in our capitalist society is forced, and that no lines can be drawn between rape and what happens in millions of bedrooms in today’s society. This feminist standpoint on rape has one thing in common with the most traditional (or as Estrich puts it, “sexist”) view: the idea that non-traditional rape is no different from what happens in millions of bedrooms in society — this is because, for the radical feminist, all of it is rape. MacKinnon, in her piece ‘A Rally Against Rape’ (1981; published 1987), states that rape is whenever a woman has sex and feels violated, the problem is that rape is defined on women’s own sense of violation and that is why they are not reported. On the other hand, the traditionalist believes that it is all permissible seduction. In terms of policy-making, neither side of the debate is willing to draw lines between rape and permissible sex — because of this, the two standpoints, though contradictory in every other aspect, take us to the same practical policy implications.
Estrich’s view differs from many others because she recognises that both men and women in society have long accepted norms of male aggressiveness and female passivity which lead to a restricted understanding of rape. Estrich does not propose that all of the acts of sexual intercourse that could be termed forced be punished — what Estrich does suggest is that the law should be understood to prohibit claims and threats to secure sex that would be prohibited by extortion law and fraud or false pretences law as a means to secure money. The law should evaluate the conduct of “reasonable” men, not according to a “no means yes” perspective, but by giving women’s words respect. If silence does not invalidate consent, then at the very least crying and saying “no” should — a law that rejected those views and respected female autonomy might do more than reflect the change in our society, it might even push it forward a bit.
Rape trials give the appearance of having the function of controlling women instead of offering them protection. Barristers, while arguing their case, play on the prejudices of jurors. A rape trial can be seen as a measure of views of sexual difference, of male dominance and, woman’s inferiority. According to Lees (1997), the ideology condones and legitimises a degree of male violence, the conduct of rape trials has the function of limiting the degree of violence against the few women who bring cases to court but its function is to reinforce male dominance, to undermine women’s experience and hold their autonomy in check. To quote Susan Brownmiller: “That some men rape provides a sufficient threat to keep all women in a constant state of intimidation, forever conscious of the knowledge that the biological tool must be held in awe for it may turn to weapon with sudden swiftness born of harmful intent” (Brownmiller, 1975, ‘Against our will: Men, Women and Rape’; as published in pp 403, Barnett, 1997).
The following reforms are long overdue: Firstly, the legal definition of rape needs to be widened; secondly, the prosecution counsel should be allowed to prepare the case with the complainant as is the case in some American States; and thirdly, the Sexual Offences (Amendment) Act 1976, which had failed to implement in full the recommendations of the Heilbron Committee (1975), designed to restrict the use of sexual history evidence about the complainant, should be tightened up. If such evidence is to be permitted, then equivalent information about the defendant, including previous convictions, should automatically be allowed. A radical overhaul of the way in which prosecution barristers handle rape case is required, including training in how rapists operate and the effects of rape on the woman. An opportunity to meet with the complainant before the trial, more use of expert evidence regarding typical reactions to rape, and the provision of screens in all courts so the complainant would not have to face their attacker are all details that could be put into practice to make an ordeal less painful and threatening to the woman who has been raped. The long delays in trials coming to court should be cut shorter, and there should also be some monitoring of trials and the analysis of acquittal and sentencing rates in different parts of Britain.
If these reforms were put into practice, perhaps a situation such as this would not be allowed to happen:
“In 1989, for example, Michelle Renshaw, called as witness in a rape case, was sent to prison for three days by Judge Pickles for refusing to give evidence because she was scared of retribution from her attacker”. (Lees, pp70, 1997; See Woman Appeals Against Pickles’ Sentence, Observer, 12 March 1989; Pickles, Shame, Daily Mirror, 14 March 1989).
7: Bibliography:
Hilaire Barnett, Sourcebook on Feminist Jurisprudence, Cavendish Publishing Ltd., London, 1997.
Hilaire Barnett, Introduction to Feminist Jurisprudence, Cavendish Publishing Ltd., London, 1998.
[Ed] Anne Bottomley, Feminist Perspectives on the Foundational Subjects of Law, Cavendish Publishing Ltd., London, 1996.
C.L.M.Boyle, Sexual Assault, The Carswell Co. Ltd., Canada, 1984.
[Ed] J.Brophy and C.Smart, Women-in-Law — Explorations in Law, Family and Sexuality, Routledge and Kegan Paul, London, 1985.
Brown et al., Sex Crimes on Trial — The Use of Sexual Evidence in Scottish Courts, Edinburgh University Press, Edinburgh, 1993.
[Ed] B.Fawcett et al., Violence and Gender Relations — Theories and Interventions, SAGE Publications, London, 1996.
Brent Fisse, Howard’s Criminal Law (Fifth Edition), Sweet & Maxwell Ltd., London, 1990.
L.M.Friedman, Law and Society — An Introduction, Prentice-Hall International Inc., London, 1977.
L.Gruen & G.E.Panichas, Sex, Morality, and the Law, Routledge, London, 1997.
B.Hill & K.Fletcher-Rogers, Sexually Related Offences (Criminal Practice), Sweet & Maxwell, London, 1997.
[Ed] S.Jackson et al., Women’s Studies — A Reader, Harvester Wheatsheaf, London, 1993.
Sue Lees, Carnal Knowledge — Rape on Trial, Hamish Hamilton, London, 1996.
Sue Lees, Ruling Passions — Sexual Violence, Reputation and the Law, Open University Press, Buckingham, 1997.
Catharine A.MacKinnon, Feminism Unmodified — Discourses on Life and Law, Harvard University Press, London, 1987.
G.M.Matoesian, Reproducing Rape — Domination through Talk in the Courtroom, Polity Press, Cambridge, 1993.
Stephen J.Schulhofer, Unwanted Sex — The Culture of Intimidation and the Failure of Law, Harvard University Press, London, 1998.
Carol Smart, Feminism and the Power of Law, Routledge, London, 1989.
[Ed] Patricia Smith, Feminist Jurisprudence, Oxford University Press, Oxford, 1993.
Jennifer Temkin, Rape and the Legal Process (Modern Legal Studies), Sweet & Maxwell, London, 1987.
Jennifer Temkin, Reporting Rape in London: A Qualitative Study, The Howard Journal Vol 38 No 1. Feb 99 pp. 17–41, Blackwell Publishers Ltd., Oxford, 1999.
[1] 1 In the United States of America, (Judith Rowland, 1986; as cited in Lees, Ruling Passions, 1997) a state attorney in San Diego, the prosecution and complainant prepare the case together over several months before the trial. In Denmark and Norway, the complainant is entitled to legal representation from the moment that she reports a sexual assault. Under this provision the police are obliged to inform the victim of her rights and to provide a list of suitable advocates in the absence of her having her own lawyer. These lawyers are provided by the state and have had training specifically related to sexual assault cases, which is not provided on completion of the Law Society’s Finals or the Bar Finals in Britain. In some areas, victims are offered victim support, a voluntary service which (with limited resources) provides some emotional support and help in preparing complainants for a court hearing. It is often the case that complainants are not kept informed by the police of what has happened to their case, and are not told if the case reaches court or not.2
[2] 1 In Canada, as soon as a sexual assault is reported the complainant has the right to free legal advice and is put in contact with a lawyer who can represent her in court.
[3] 1 An example of how a defence counsel (DC) cross-examined a woman complainant © (Lees, pp61, Ruling Passions, 1997):“DC: Do you recognise that garment? C: Yes. DC: Your knickers. Are they clean? C: I don’t know. [The usher ostentatiously puts on rubber gloves and picks up the exhibit.] DC: I think they are ones you took off. Judge: [to C] Would you like some plastic gloves? Or I don’t suppose you mind handling your own knickers?”1
[4] 1 The 1994 Amendment to the Sexual Offences Act 1956, Section 2 and section 2 (2):Defines rape in gender-neutral terms for the first time. There is the concentration on whether or not the woman did, or did not, consent — rather than concentration on the man’s actus reus and mens rea. While section 2 of the Sexual Offences (Amendment) Act 1976, as amended, prohibits questions being posed as to the victim’s past moral character and sexual behaviour, section 2 (2) undermines this prohibition by permitting a judge to waive the rule on an application made, in the absence of the jury, to him by the defence, on the basis that it would be ‘unfair’ to the defendant to refuse to allow the evidence to be adduced or the question to be asked’.1
[5] 1 NB: The term “practitioner” here includes the Police, Judges, Advocates, Defence Counsel and Lawyers…among others.
[6] 1 NB: This is Scottish Court Research so may not apply fully to the English Court system.
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