Briefing
on the Sexual Offences Bill 2003
Women Against Rape
Background
This Bill was presented
as an overhaul, intended to address the low conviction rate for rape –
currently an appalling 7%.
Some proposed
improvements, such as recognition of oral penetration as rape, rather
than a lesser sexual assault, are changes women have long pressed for.
And we are glad to see that there is no attempt to create
different grades of rape.
But crucially, the Bill
does not adequately tackle the abuse of the notorious defence of
“belief in consent”.
The Bill is also
problematic in other ways, and its language and structure are convoluted
and confusing. This is no
way to get clarity and justice in court, or to send a clear message
about what is and is not acceptable behaviour.
This briefing and our
proposed amendments only deal with forms of coercion, belief in consent,
and disability. Many of the changes we propose are already in force in other
countries, or have been recommended by the Sexual Offences Review or by
the Law Commission but are ignored in this Bill.
Belief in consent
Sexual history
The defence of
“belief in consent” is qualified by the addition that where there is
doubt, the defendant must show that he acted reasonably to establish
consent. This will not stop
“belief” being used to attack the woman’s character throughout the
trial, thus undermining any gains from this legislation.
The problem in court is
that the woman is routinely “put on trial” by the defence and
neither the prosecution nor the judge stops it.
Most rapists are men the woman knows, and the most common defence
is that she consented, and/or the accused believed that she did.
To justify the defendant’s alleged belief, the woman’s sexual
history, lifestyle and mental health records become material to the
trial, obscuring the real facts of the case.
When the government
Women’s Unit justified this aspect of the law, it caused a furore.
The
Times reported (1 March 1999)
that “The Minister for Women, Baroness Jay of Paddington, was at
the centre of a row last night over plans to reform the admissibility of
the sexual history of a woman victim as evidence in rape trials . . .
The Women’s Unit said in a letter to Women Against Rape (WAR): ‘A
defendant might claim that he believed the complainant was consenting
because he had been told that she always kicked and screamed during sex.
This would be relevant to his honest belief.’”
The Unit was publicly
embarrassed; its director apologised.
Recent legislative
changes have not restricted sexual history evidence enough.
The Youth Justice and Criminal Evidence Act 1999 was supposed to
protect women from being cross-examined about their sexual history.
But under that Act such evidence is still allowed whenever the
man’s defence is that he believed the woman was consenting. We were told by Labour women MPs (as this legislation was
being finalised) that this problem would be remedied in the overhaul of
sexual offences. But that
overhaul – represented by this Bill – does nothing of the sort.
Instead of banning, as
we had suggested, the most obviously biased and irrelevant sexual
history evidence, that is, evidence that relates to a woman’s sexual
history with men other than the defendant, the Youth Justice and
Criminal Evidence Act 1999 makes no distinction between sex with the
defendant and sex with others. Again,
under this Bill, subsections 1(3)(a) and 78(1)(a) invite the accused to
raise any sexual history evidence, including whatever he can find about
the woman’s past sex life with anyone at all, to justify his sexist
“belief”, i.e. his right to rape.
The mental element of the crime (subsection 2 of the opening
clause) begins with belief – not “knows” or is “reckless”, as
under the current law. And
since sexual history evidence is not excluded, the accused is
immediately invited to raise such evidence to justify his belief.
A reasonable person
Nor can we count on the
“reasonableness” of those who conduct the trials, judges or lawyers,
defence or prosecution. Given
the history of rape trials, how can we trust them to judge a rapist
unreasonable? These are the
same judges who until 1991 considered rape in marriage legal!
In clause 1(3), for example, what is to stop courts deciding that
“in all the circumstances” a reasonable person would not doubt B’s
consent, because B had happily consented to sex with other men in
similar situations, or because of how she was dressed, or because she
had been dancing with the defendant earlier in the evening?
Mistaken belief in
consent occupies an unjustified central position in the Bill, focusing
attention not on what happened – whether the woman actually consented
– but on what was in the man’s mind and assumptions he made about
her. Yet in almost every
imaginable situation, it is not hard for a man to find out if the woman
is consenting. If she is
not clearly enthusiastic, he can ask her. If there is any real evidence
that would lead him to a reasonable belief in consent, it will also be
evidence that she did consent, and the jury must acquit him.
Mistaken belief is a diversion from the real issue of consent, an excuse to muddy the waters, put the woman in a bad light, or appeal to
the prejudices of the court.
The legal establishment
has used the principle of criminal intent – that in order to be guilty
of the crime the defendant had to know that what he did was wrong – as
an excuse for the disgraceful ways in which rape and sexual assault
evidence is handled and presented. The principle of intent has been so distorted in rape cases
that courts impose on juries, the perspective, assumptions and
calculations of a rapist, thus upholding his crimes and denying justice
to his victim. This would
be further maintained by proposed amendments to the Bill stipulating
that the “reasonable person” imagined to be making a judgement on
consent and on belief, must “share the characteristics of the
accused”.
The debate about
“mens rea” has been based on false assumptions.
Men who believe that women “always want it”, or mean yes when
they say no, or that wearing a certain kind of underwear means that they
consent to sex with anyone under any circumstances, are not making a
genuine mistake about the facts. In
Canada it is now being established that they are making a mistake about
the law which represents what is acceptable to society.
That kind of mistake is not protected by “men’s rea”.
In accepting the rapist’s perspective, the courts are promoting
rape. Instead, they should
be giving men a clear message that sexual contact must be mutually
acceptable, and that it is their responsibility to find that out.
No to segregating
victims with “a learning disability or mental disorder”
Although the offences
in the Bill (clauses 33-47) were presented in government publicity as
completely new, sexual intercourse with a so-called “mental
defective” has been a crime at least since 1956.
We
conveyed to the Sexual Offences Review that treating some people with
disabilities as a lower form of life in the rape law has been an
invitation to discrimination and the non-prosecution of sexual violence
against some of the most vulnerable people, especially women and
children. The Sexual
Offences Bill has been put forward as answering the Broadmoor scandal
which came to light recently (reported in all the main broadsheets in
March 2003), where women patients were repeatedly sexually abused by men
patients. Among others,
Lord Astor has called for more severe penalties for carers who engage in
abusive sexual relationships with patients.
Focussing on care workers does not deal with rape by other
patients, as in Broadmoor.
Although “mental
defective” is replaced with less abrasive terms in this Bill,
nevertheless it maintains the separate category whereby different
considerations are brought to the rape and sexual assault of children,
women and men with disabilities. The
segregation which the Bill continues, is at the root of how women
patients in Broadmoor were treated, and the non-prosecution of the
attacks they reported. Many
of the women, most of whom were survivors of earlier violence, were
raped and sexually assaulted by men patients detained for committing
horrific crimes. Staff who allowed this violence to go on drove a woman
manager out of her job for blowing the whistle, though she later won
compensation.
Assaults are rife on
those of us who are this vulnerable, but hardly any cases get to court.
Police called in to investigate sexual assault by men bathing
women in care homes are no longer interested once they find out the
complainant has Alzheimer’s Disease.
Psychiatric hospitals refuse to take responsibility for the rape
of women patients, or to confine rapist patients, and refuse to bring in
truly women-only wards.
We propose an amendment
which starts to protect victims with disabilities under the mainstream
definition of sexual offences, and we have put the principle of lack of
consent into the care worker offences -- there are always problems when
outsiders are able to invoke the criminal law where the victim is
apparently consenting, has not made a complaint herself and cannot
prevent a prosecution even if that prosecution is against her will.
What we really need is the abolition of separate offences based
on disability status so that all women with disabilities have the full
protection of the law.
Amendments
to the Sexual Offences Bill 2003
Clauses
43-47 - Care workers’ sexual activity with a person with a mental
disorder or learning disability, and similar offences
Amendment
to all clauses:
Replace (c) “B has a mental disorder or learning disability”
with “B is unable to refuse
because of a mental disorder or learning
disability, as defined in 33(2)”.
Rationale:
The offences dealing with care workers leave out the requirement in
the other disability-related offences that the person is “unable to
refuse”. Without our
amendment (copied from the disability-related offences), the crime
arises from the care relationship, not from lack of consent.
Consenting relationships should not be prosecuted.
Clause
77 – Consent
Amendment:
“A person consents if s/he is willing, without coercion, and
informed, without deception.”
Rationale:
Having
the capacity to understand is not the same as being informed, that is,
having the relevant information. And
a person can be free (able) to decide to do something, without being
willing. The Bill’s definition is that he “agrees by choice,
and has the freedom and capacity to make that choice.” These
terms are much more subjective than in our amendment.
New clause – insert:
“If
at a trial a person charged with a sexual offence is seeking to
establish that s/he believed the complainant consented, then
(a)
no evidence may be adduced, and
(b) no
evidence may be asked in cross-examination
by or on behalf of any accused
at the trial, about any sexual behaviour or sexual experience of the
complainant with any person other than the accused.”
Rationale:
Legislation should ensure that
men’s unreasonable belief in women’s consent does not give them
licence to rape. A man cannot reasonably conclude that, because of something a
woman consented to with another person, she consents to an activity with
him. Any such conclusion is
unreasonable. It is not
admissible and is therefore no excuse for allowing a women’s sexual
history to be brought into court to degrade, intimidate, and discredit
her. We know of no other jurisdiction which allows sexual history
evidence on this basis.
Clause 78 – Presumptions about the
absence of consent
Amendment:
Leave
out clause 78 (1)(a) and insert instead:
“78(1)(a)
the complainant is taken not to have consented to the relevant act
unless the defendant adduces evidence that s/he consented on that
occasion.”
Rationale:
In
cases where the defendant has used or threatened violence or where the
complainant was asleep or unconscious, we do not see why her consent
should be presumed any more than his belief, which the Bill already says
is up to the defendant to “prove”. Many other jurisdictions, and Protecting
the Public, have accepted that in such circumstances the burden of
proof should fall on the defence. In this Bill, by contrast, all he has
to do is “raise an issue” – as under current law.
This is another invitation to attack the woman in court.
Criminal Injuries Compensation Authority backed man who raped family
friend who was asleep
Amendment:
Subsections
(3)(a) and (3)(b): Delete the
word “immediate”.
Rationale:
Many
threats are not immediate but are as potent to the victim.
Assumptions that if a threat is not immediate, the woman can
access protection from the police and other authorities, have repeatedly
been proved wrong, and women have died as a result.
Amendment:
Add these other important
circumstances to Subsection (3):
“The
person submits through fear of harm of any kind, to themselves or to
another person, including because of
-Threats
relating to the complainant ’s children;
-Financial
deprivation, or threat of this.
Abuse of authority;
Abduction,
including threat by a father to abduct a child away from its mother.”
Rationale:
These
are common abuses of power used by rapists. If you are raped by a person
in authority (e.g. a police officer), you are less likely to report it,
and less likely to be believed. Rather
than simply “against another person”, the Bill should specify
threats to children to force women into unwanted sex, especially since
this is commonly used by violent ex-partners.
Men also threaten women with financial deprivation which affects
our children. The first
concern of a mother is her dependants’ welfare. The coercion specified
in 3(a) and (b) is limited compared to other jurisdictions.
Submission is not the same as consent.
Amendment:
After (e), which deals with complainants who, because of physical
disability, are unable to communicate whether they consent, add:
“(f) people with learning disabilities or
mental disorder.”
Rationale:
Treating victims unable to consent as outside the mainstream rape law,
has not protected victims with disabilities.
Prejudiced considerations are brought to bear, leading to dropped
investigations. Our
amendment helps to bring vulnerable victims into the mainstream and
allows for individual circumstances to be aired in court.
Amendment:
Leave
out Clause 78, subsection (5) and substitute:
"78(5)
In deciding whether or not the defendant acted in a way that a
reasonable person would consider sufficient in all the circumstances to
ascertain whether the complainant was consenting, the jury should be
directed not to consider the following evidence:
(i) evidence of anything said or done by a third
party, or
(ii) evidence of the complainant's past sexual behaviour or
experience with any person other than the defendant"
Rationale:
As
it stands, subsection (5)(b)(i) bans third party evidence where it is
the only evidence put forward, but allows it to be raised if it is
together with something the accused saw for himself, for example, the
way the woman was dressed. This
is unacceptable and will continue to provide a vehicle for outrageous
justifications of rape in court.
Evidence
of the woman’s sexual history with other men should be largely
excluded by the new clause proposed above, which removes a defence of
“belief in consent” as an excuse for bringing in this evidence.
Under criminal evidence law, sexual history may still be raised
for other reasons. This is not to be taken as evidence of consent.
Amendment:
Leave out clause 78(8)(a)
Leave out clause 78(8)(b) and substitute:
“The defendant intentionally induced the complainant to consent to
the relevant act by deception, or by impersonating a person known
personally to the complainant.”
Rationale:
It is not only deception as to
the nature of the act, or the person involved, that can lead to rape.
Please see the moving personal testimony attached.
Mandatory Judges’ Directions
New clause:
“In every case where
evidence or questioning about a woman’s sexual history is permitted by
the judge, a mandatory warning must be issued by the judge to the jury
making clear that
(a) consent
to activity with one person does not prove consent to activity with any
other person, and
(b)
consent to activity with the accused on one occasion does not
prove consent on any other occasion.”
As recommended in Setting
the Boundaries (para 2.1.3), there should also be a mandatory
direction along the lines of that used in Victoria and in the Australian
Model Criminal Code to establish that:
New clause:
“A person is not to
be regarded as consenting to a sexual act just because
- the person did not say or do anything to indicate they did not
consent, or
- the person did not protest or physically resist;
- the person did not sustain physical injury;
on that or an earlier occasion,
the person had consented to engage in a sexual act (whether or not of
the same type) with that person or a sexual act with another person.”
Rationale:
Many judges have proved themselves biased in rape cases, and promote,
rather than challenge, sexist assumptions. Mandatory warnings are some protection for the rape survivor
that prejudices will be challenged in court and that juries must put
their prejudices aside when considering the evidence.
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