key links
The Law, reporting to the Police and Court Procedures.
Ø The Law
"Did you know ... it is not a crime to say no but it is a crime to ignore it"
Law – existing and proposed changes
What is the current definition of rape in law?
The Sexual Offences Act 2003 (the Act) came into force on the 1 May 2004. It repealed almost all of the existing statute law in relation to sexual offences. The purpose of the Act is to strengthen and modernise the law on sexual offences, whilst improving preventative measures and the protection of individuals from sexual offenders.
The main provisions of the Act include the following:
· Rape is widened to include oral penetration
· Significant changes to the issue of consent and the abolition of the Morgan defence
· Specific offences relating to children under 13, 16 and 18
· Offences to protect vulnerable persons with a mental disorder
· Other miscellaneous offences
· Strengthening the notification requirements and providing new civil preventative orders
What is the definition of consent?
The Act has three important provisions relating to consent. They are:
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A statutory definition of consent
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The test of reasonable belief in consent
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The evidential and conclusive presumptions about consent and the defendant's belief in consent
Section 74 defines consent as "if he agrees by choice, and has the freedom and capacity to make that choice". In the offences of rape, assault by penetration, sexual assault and causing a person to engage in sexual activity without consent, a person (A) is guilty of an offence if (s)he:
· Acts intentionally;
· (B) does not consent to the act; and
· (A) does not reasonably believe that B consents.
Deciding whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents (subsection (2) of sections 1-4). It is likely that this will include a defendant's attributes, such as disability or extreme youth.
This is a major change in the law and the Act abolishes the Morgan defence of a genuine though unreasonably mistaken belief as to the consent of the complainant. It means that the defendant (A) has the responsibility to ensure that (B) consents to the sexual activity at the time in question. It will be important for the police to ask the offender in interview what steps he took to satisfy him that the complainant consented.
What involvement does the rape crisis movement have in law reform?
Rape Crisis was a participant on the external reference group of the Sex Offences Review. The rape crisis movement has also been involved in consultation with the Sentencing Advisory Panel, the Community Justice National Training Organisation, the Women’s Unit, the Crime Reduction Programme and HM Crown Prosecution Inspectorate.
Should accused men be granted anonymity?
We must have anonymity for the victims otherwise women will not come forward to report. Most of the women who contact rape crisis have never reported to the police. We must respect the courage for those who do. It is not easy or pleasant going through all the police interviews and the courts. We must at least retain anonymity.
We must not treat the accused in rape cases any different from murder or child abuse. You cannot have special rules for the accused in rape cases as this will feed the myth that women who report rape are lying, that it is easy to report rape etc…
Anyone accused of rape should not be named until charged with the offence. Sometimes police forces do not adhere to this. On being charged it can be useful for the name of an accused to be published, as other women who have been raped by him, often with the same modus operandi, may be encouraged to report.
The Sexual Offences (Amendment) Act 1976 sections 4 and 5 provide for the anonymity of complainants in rape cases. The Criminal Justice Act 1988 amended the law on anonymity for complainants in rape cases so that anonymity commences when an allegation of rape is made to police and not--as provided in the Sexual Offences (Amendment) Act 1976--when a defendant is formally accused. The 1988 Act also removed the anonymity of defendants in rape cases. There were further additions made in the Sexual Offences (Amendment) Act 1992 and the Youth Justice and Criminal Evidence Act 1999.
What is the maximum sentence?
The maximum sentence for rape is life imprisonment.
What is the average sentence?
This varies widely. The average sentence seems to be around four years although we do know of many cases where this was much less.
Is prison the best solution?
There are problems with prison. The man may simply gain access to a wider social circle in which he can find legitimacy for his actions. Sex offender treatment programmes have yet to be fully researched and are generally more geared towards child abusers than abusers of adult women. While prison remains the only way to secure women’s protection we will continue to push for more appropriate sentencing. Of course for many women and children the abuse happens in secret, in the home and the man pays no penalty.
Should there be different offences of rape?
No. This was agreed at the Sex Offences Review and there will be no recommendation for separate offences. Rape is rape regardless of the relationship or the context.
What are the common defences to rape?
There are 3 defences to rape.
1) Nothing happened
2) It wasn’t me
3) She consented.
Because of DNA fingerprinting, we are getting much fewer of the first two defences and much more of defence three.
Because of the Morgan ruling in the mid 1970s, to convict a man of rape first of all, the prosecution had to convince the jury beyond reasonable doubt that the woman was not consenting. Whether he was guilty or not depended on whether or not he thought she was consenting – what was going on in his head – not what was happening to her body. This was the “Morgan” rule which says that a man is not guilty of rape if he believed she was consenting NO MATTER HOW UNREASONABLE THAT BELIEF.
The Sexual Offences Act 2003 introduced the concept of 'reasonable steps'. Deciding whether a belief is reasonable is done by considering any steps he has taken to ascertain whether she consented (subsection (2) of sections 1-4).
This is a major change in the law and the Act abolishes the Morgan defence of a genuine though unreasonably mistaken belief as to consent.
"Did you know ... without consent it is rape"
Reporting procedures
Isn’t rape the easiest charge to bring and the most difficult to prove?
This is actually a misquoting of the myth. It is worse than that. The myth is that ‘Rape is the easiest accusation to make and the most difficult to disprove’.
Actually, men find it quite easy to disprove rape under our justice system. Our conviction rate is low and hovers around 6%. Despite this, women continue to seek justice. Rape crisis supports women whatever their decision.
What if it just the woman’s word against the man’s?
We know such cases are more difficult but perhaps the CPS should provide trained special prosecutors for such cases who can deal with the myths about rape that the defence inevitably run.
How is the woman kept informed of the progression of the case?
There should be one person who keeps in touch with the complainant about progress of the case. Currently the police keep in touch with her up to the point when the man is charged and then often she hears nothing more.
Does Rape crisis comment on individual cases?
No. It is often impossible to comment on ongoing individual cases. This is because we often have little knowledge about the case, often only that which has been reported by the media. However, historic cases such as Owen Oyston and the DJ Rapist can be useful cases for discussion. What we can do is comment on how the case adds to the existing knowledge about rape.
How many reports were there last year?
In 2004/05 measuring offences changed because of the Sexual Offences Act. A total of the various reported offences of rape of a female (of whatever age) was 13,322. This however just the tip of the total number of rapes - most of which are not reported. (See also Statistics)
How many convictions?
· Over two-thirds of cases dropped out at the police stage and did not make it as far as the courts.
· One quarter of incidents initially recorded as rape were subsequently 'no-crimed' by the police.
The current conviction rate is 5.8%. (See CER website)
Is there a trend in the increase in reporting?
The problem about rape in this country is that less than 6% of women who report rape to the police see their attacker convicted of rape. It used to be over 25% and it is falling. This is the issue that must be addressed in this country – perhaps by special prosecutors, as in some states in America.
"Did you know ... the police have a duty to investigate reported rapes"
Police attitudes
What do you know about the Thames Valley Police video?
Roger Graef filmed police officers questioning a woman who was complaining of rape, for a TV programme ‘Police’ for the BBC in 1982. This brought the public’s attention to the techniques of intimidation employed by the police. This highlighted the culture of disbelief that to some extent still pervades the criminal justice system. Police practice has improved but training is still required in understanding how best to treat women complaining of rape.
What facilitates are there for women who report rape?
Good and bad it varies across the country (see below).
Have the police improved in their handling of rape cases?
In the last ten years we have seen improvements in relations between Rape Crisis groups and local constabularies. A recent study conducted by Rape Crisis highlights improvements in parts of the services provided by the police to women reporting the crime of rape or sexual abuse. If we were to `paste` these examples together, it would represent the kind of service women want to see offered as a whole in EVERY constabulary. What we see is good practice in some areas, but not all.
What we also found was that there is no one constabulary that delivers all of the good service required by women reporting rape. The fact that good practice happens in some constabularies, is a credit to the dedication of the officers and policy makers in those particular constabularies and the work of Rape Crisis in those areas. It also highlights what is possible - probably with very little extra resources in terms of funding and personnel.
Where the local constabulary works with the local rape crisis the service to women survivors is notable improved.
When a women calls a Rape Crisis help-line numbers and asks what will happen if she reports the incident to her local police – we tell her the truth, whatever that may be in the local context.
"Did you know ... rape crisis always believes what the woman tells them"
Court procedures
The courtroom experience has been called the second assault, do you agree, and why?
Yes, it can be the first time since the women has been raped and reported the incident to the police that she actually relives the full horror of the incident. She may have to face the rapist in the courtroom and may face hostile questioning of a very personal and intimidate nature in a very public setting. It is possible that she will feel very disempowered and experience the trial as another attack.
What is the woman’s role in the court?
The woman’s role is as a witness for the prosecution and as such she is not represented by legal counsel.
Is she represented in court?
Not at present. In Ireland, representation of the woman has just started. If they can do it we can do it, as the legal systems are very similar.
What sort of questions is the woman likely to be asked?
There have been a lot of bad examples in the past. Although the court process is still not easy for women there have been improvements and we are constantly working to improve things for women.
Examples of the kind of question asked in the past and which we hope have been outlawed by S41 of Youth Justice and Criminal Evidence Act:
· Have you ever had sex in a car before (If she was raped in a car)?
· Have you ever had a one night stand/ sex on the first date? (If the man has raped her eg on the way home from a club)
· Have you ever had sex with a black man before? (If he is black and she is white)
How are women treated in court?
As witnesses for the prosecution. They are not represented in court.
What new measures are there to protect women in court?
Section 41 of the Youth Justice and Criminal Evidence Act is supposed to protect the complainant from questions about their sexual history sexual behaviour (see above).
Are accused men allowed to question the complainant in court?
No.
In November 1996, the then Home Secretary Michael Howard announced his intention to abolish the right of a defendant in a rape case to represent himself. This was in reaction to the case of Rallston Edwards who cross-examined Julia Mason for six days (Daily Telegraph, 23 August 1996). Her ordeal had been made worse by the fact that Edwards wore the same clothes in court as he had worn when he raped her. Michael Howard’s announcement may have indicated the government’s intention to accept a more woman-centred definition of violence by recognising the harm done to the woman in court. However, it took a change of government and another three years before legislation was introduced to prevent defendants in rape cases cross-examining the raped woman. This ‘right’ was taken away under the Youth Justice & Criminal Evidence Act 1999 after prolonged campaigning by groups such as Campaign to End Rape (CER).
"Did you know ... women are not entitled to legal representation but can take a rape crisis worker to the court for support"
Attrition (Also see Statistics)
Why don’t women report?
Research shows that women are less likely to report rape than they are to report domestic violence. One of the main reasons for this is fear of being disbelieved by the police. So immediately, there is a large figure of sexual violence that never gets reported. Rape is an attack on the integrity of the woman’s body and on her own autonomy. She may feel powerless to report, particularly if threat of further violence was made. Due to the intimate nature of the crime, she may feel reluctant to submit herself to the invasiveness of a forensic examination and/or questioning from the police.
The Home Office conducted research into rape cases in 1999 (A Question of Evidence) (Also see Articles) and this found that only a third of reported cases were considered by the CPS. So there is a big loss of cases at the police stage. Twenty percent of cases where there was a detected perpetrator were referred by the police to the CPS for guidance on whether to charge and in two thirds of these cases the CPS advised no further action. So the involvement of the CPS, even at the police stage, is crucial.
How many false allegations of rape are there?
There is a commonly held belief that the figure for false allegations is high. In fact there is no evidence to suggest that it is any higher than false reporting of any other crime – around 2%. In fact research conducted by the NYPD and other research conducted in Sweden (Persson, 1981) and recently in New Zealand (Jordan) also found a false accusation rate of 2%. Importantly none of those cases reached court. In fact for some crimes (for example house theft and car theft), false reporting is much higher because of insurance claims.
How many reported cases make it to court?
Home Office research (1999 A Question of Evidence) suggests that the CPS drop around a fifth of the cases referred to them and that around 20% of all reported rapes make it to court.
"Did you know ... women are not legally obliged to report a rape but should get justice if they do"