Rape: What The Law Actually Says

[major_clanger]

Following the discussion on fjm's LJ about the results of the recent survey to attitudes regarding rape, and the much-publicised recent collapse of a rape trial, I thought I'd go back and review the law in this area. It was updated fairly recently by the Sexual Offences Act 2003, which was introduced in large part to address concerns about how rape and related offences were prosecuted.

As I noted in my response to fjm, rape is an inherently peculiar and awkward offence to define and prosecute because of the central issue of consent. To repeat my example:

As for the question of why rape is a distinct offence from assault, it is because the offence is not of the act itself but rather of the act in the absence of consent. Now, strictly speaking you can consent to an assualt, but it is very unusual; by contrast, the vast majority of instances of sexual intercourse are consensual. Put simply, it is an almost always an offence to hit someone with a hammer, but it is very rarely an offence to have sex with someone. This elevates issues of consent to paramount importance.

[Quick reality test: if every adult in the UK has sex once a month, that's 40 million x 12 / 2 or 240 million sex acts a year - remember to divide by two as it takes two for each act! Even the worst estimates for rape are about 60,000 a year, so only 1 in 4000 sex acts is non-consensual.]

Thus in a complaint of rape, the key question is not 'was there sex?' but 'was there sex without consent?'. This makes matters legally much more complex, as for most offences there is a clear distinction between the actus reus - the 'guilty act' - and the mens rea - the 'guilty mind', with both usually being required for an offence to have occured. But for rape, the actus reus itself has a significant mental element, in terms of consent.

SOA 2003 defines consent in sections 74 to 77. S74 gives a general definition:

For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.

(Rule of Legal Interpretation 1: 'he' always also means 'she' unless explicitly stated otherwise)

On the basis of s74, it thus looks like consent is always a matter of arguing the facts. Now, since it is a cardinal principle of English law (and most other legal systems) that a defendant is innocent until proven beyond reasonable doubt to be guilty, this means that the burden of proof is on the alleged victim to show beyond reasonable doubt that consent was not given. In other words, the law usually assumes that if in doubt, there was consent to sex - if it didn't, then rape would be a 'guilty until proven innocent' offence.

But there are clearly some circumstances where this presumption is not tenable, and s75 addresses them. Specifically, s75(1) reverses the burden of proof in these cases, making it for the defendant to show that he had consent. The most relevant circumstances are detailed in s75(2)(d) and s75(2)(f)

(d) the complainant was asleep or otherwise unconscious at the time of the relevant act;

(f) any person had administered to or caused to be taken by the complainant, without the complainant's consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.

So what do these say about drunkenness? Sub-section (d) says 'asleep' or 'unconscious', which could include paralytically drunk. If does not otherwise say 'drunk', though.

(Rule of Legal Interpretation 2: If legislation gives a specific list, it is taken that that list is complete, specific and exhaustive unless there are words such as 'or similar...', 'or otherwise...' that generalise it.)

Why not? Because, I would suggest, it would be extremely hard to draw the line as to how drunk someone has to be before he or she loses capacity to consent. As it is, the law draws the line at 'so drunk he or she is unconscious', which is at least objective (if subject to dispute).

The situation is different, though, if drinks are spiked. Sub-section (f) does reverse the burden of proof if the alleged victim was 'stupefied or overpowered' due to substances administered without their knowledge. This is of course aimed at addressing the use of 'date-rape' drugs, but could also apply to someone spiking a drink.

So, when the prosecution counsel said, and the judge agreed, that 'drunken consent is still consent', they were not expressing their opinion; they were accurately stating the law on sexual consent as it stands today. Many people might think that the law is wrong, but it is not for lawyers or judges to change it (certainly not in a court of first instance - the House of Lords has a bit more latitude, but not where the legislation is plain and simple). That's a job for Parliament, which made the law, and indeed in this area did so only very recently after very extensive discussion. Furthermore, the obvious change to make - adding 'drunk' so s74(2)(d) of SOA 2003 - could well make rape 'guilty until proven innocent' in any case where the alleged victim had been drinking. Detest rape and rapists as I do, and keen as I am to improve the number of successful prosecutions, I have grave reservations about going about it like that.

Comments

[purpletigron.livejournal.com]

If the woman cannot recall the events, there is a case to be made that she could not have been fully conscious. How does alcohol affect memory - does it simply prevent long-term memories from being constructed, or is stream of consciousness affected? What does 'conscious' mean in this context, in any case? I would argue that it should include 'self-aware' - a cat is, after all, 'responsive' - which is a necessary pre-requisite to informed consent.

[major-clanger.livejournal.com]

I don't know; even amongst my friends, I've seen so many different reactions to drink. Some just become more ebullient, even when so drunk they have little memory of it the next day. Others become very changed in their behaviour, but recall everything very well (often better than they might prefer...)

I've certainly known people be obviously drunk, still able to give reasonably coherent answers and make decisions, and yet remember nothing of it later.

[timill]

And if the man doesn't recall clearly the next day, but the woman does, has she raped him?

[major-clanger.livejournal.com]

From the wording of the Act, quite possibly yes. (Strictly speaking, she might have committed a serious sexual assault upon him). The language of the Act is deliberately non-specific as to the sexes of the parties involved.

[pigeonhed.livejournal.com]

On the subject of memory and trauma: My friend was assaulted by her doctor in the mid70s. She recalled it happening a couple of times.

Recently he was brought to court, someone else compained and he was found guilty. (My friend didnt know about the court case until after the event) Her ex-husband then said to her 'I'm sorry I didn't believe you at the time'. This shocked my friend because she was divorced from him almost 18months before the assaults she remembered, which meant it had probably happened repeatedly for at least that period of time and she had blocked it all out. She is now getting therapy and taking action against the NHS I believe.

So alcohol apart, how much might a rape victim's memory be distorted by the trauma? And is there anyway that some kind of therapy might help clarify these memories? Does the same apply to alcohol-related memory loss? Are these meories retrievable?

[major-clanger.livejournal.com]

This is getting into the extremely controversial area of 'recovered memories', which I'm not even remotely qualified to comment on. This site seems to give a reasonably sensible and objective presentation of the issues surrounding this emotive subject.

[antonia-tiger.livejournal.com]

The whole idea of retrieving memories opens a whole packing crate of cans of worms. There's quite a bit of history of memories being invented as a side effect of even honest attempts at retrieval. Perhaps most publicised, the whole "satanic ritual child abuse" panic. I understand that the British Police are a bit better trained than social workers at avoiding the creation of false memories.

The basic principles don't seem so very different for witness testimony and physical evidence. Both can be contaminated. And one of the problems I have with long waits before trial is that you can't just pack the witnesses away in some inert, sterile, environment. Their testimony almost contaminates itself.

[pigeonhed.livejournal.com]

I think the point is that until some definitive technology to recover 'lost' memories come along there will always be doubts, blank spots, misremberances to allow for as well as outright lies. So how much should judge, jury or even investigating police allow for this? How do we distinguish between lies and genuine mistakes? As we all do this differently it is hard to see how legal guidelines can help in this case. What is more likely to help is some kind of social change that means that most people involved in rape cases have a natural understanding of the issues of informed consent etc. I think that is coming, slowly. I don't know if its possible to speed it up though.

[marypcb.livejournal.com]

I wonder if some of this falls out of the fact that we treat alcohol as a 'different' drug from the restricted ones. If I buy you a drink it's a legitimate social act. If I offer you controlled substance B, will it look more in court like I'm setting you up for later? What about a woman who's one one of those medications that now suggest you don't make legal decisions as well as avoiding driving and heavy machinery? We're often unclear on what consent really is (how persuaded can one be), let alone how drink makes it more or less likely.