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Record: 166
30353990147201120000501
Title: Rape Law Reform in Britain.
Subject(s): RAPE -- Law & legislation -- Great Britain; FEMINISM -- Great Britain
Source: Society, May/Jun2000, Vol. 37 Issue 4, p57, 6p
Author(s): Hinchliffe, Sara
Abstract: Discusses the problems with rape law which have been profiled in British politics since the inauguration of the Labour Party administration. Proposals for legal reforms for rape cases; Liberal definition of equality and British feminism; Morgan principle on rape.
AN: 3035399
ISSN: 0147-2011
Full Text Word Count: 4532
Database: Academic Search Premier

Section: Society Abroad

RAPE LAW REFORM IN BRITAIN

The discussions of the problems with rape law have been high-profile in British politics since the inauguration of the New Labour administration. It has become an axiom of policy that rape is not tried properly. Emphasis has been placed on the trauma suffered by the woman in court. And the difficulties she may face in giving her evidence and coping with cross-examination have been widely discussed. The apparent fact that a growing number of rape cases do not result in a conviction has stirred public and politicians alike into demands for action.

These concerns have resulted in an ongoing slew of proposals for legal reform--from the restriction of cross-examination in rape cases, to the prevention of defendants from conducting their own defense, additional witness protection policies, and attempts to persuade women to report and pursue complaints of rape. It is widely recognized that the debate on rape law reform in the United Kingdom has been spurred by reforms that have already taken place in the United States, which is perceived as adopting a more progressive approach to trying rape. Ideas once seen as the preserve of a few feminist activists appear to have taken center-stage in British politics.

Little attention has been paid, however, to the problems that such reforms pose for conceptions of women as the equals of men, of women as citizens entitled to full consideration as rational agents. Moreover, the concept of the individual promoted by the discussion of rape is problematic. Under the guise of a set of reforms presented as defending the interests of rape victims, we are seeing the undermining of hard-fought civil liberties. This article looks into the discussion of the need to make further reforms in rape laws in the United Kingdom through the example of (Director of Public Prosecutions) DPP v. Morgan, and suggests the debate will set dangerous precedents for conceptions of responsibility and freedom of will under the law.

Today, a key strand within feminist thinking is concerned with criticism of the liberal definition of equality, and a demand for the state (especially legal practice) to be reformed to reflect women's unequal social position. This approach is exemplified in Catharine MacKinnon's Toward a Feminist Theory of the State, which argues that formal equality is a concept inapplicable to women and should be replaced by "substantive equality." She therefore argues that instead of being "gender-blind," the law should take women's social inequality into account. This demand for the law to base itself on an assumption of difference, rather than equality is summed up succinctly by British barrister Helena Kennedy: "It is no answer to make a simple call for equal treatment. Dealing equally with those who are unequal creates more inequality" (Eve Was Framed, Vintage, 1992, p. 31).

These developments have important consequences for feminist demands for equal treatment for women; some contemporary feminists have successfully argued that the law's presumption of equal, autonomous subjects cannot be applied to women as it can to men. This has led to changes in legal practice; for example in relation to domestic violence and rape, which have broad implications for the way in which women are viewed as legal subjects. Such special treatment might be seen as a continuation of patriarchal "protections," which assume that women neither aspire to, nor are capable of, the same standards of behavior and treatment as men.

The debate about equality raises serious problems for conceptions of women as freely choosing, rational agents. If a different standard is required by which to judge women because they are unequal, then social inequality may be formalized in law. The fact that battered woman syndrome has become an acceptable defense to murder in the United States is one contemporary example. If women are not susceptible to the same assumption of equality and rationality as men then women may be excluded from the presumption that they are capable actors.

DPP v. Morgan

Rape law reform is a good example of some of these problems, and it is a key contemporary forum through which questions about the status of women, and of men, are being considered, and by which material changes in our assumptions about human agency are being made. The ongoing debate in the United Kingdom about the "Morgan" principle is a case in point.

DPP v. Morgan, 1976 C 182 House of Lords, established the current principle of intention in British rape law. Morgan was subsequently formalized in the revisions to the Sexual Offences Act, and has become a bete noire for many feminists; it has been described by leading feminist lawyer Jennifer Temkin as "a rapist's charter."

The facts of the case were that Morgan, a Royal Air Force pilot, and three friends went on an unsuccessful hunt for women. Morgan invited his friends to come home and have sex with his wife, telling them that her signs of resistance were not to be interpreted as lack of consent. She liked kinky sex and the struggle contributed to her pleasure. Mrs. Morgan offered considerable resistance to the men who in turn used considerable force. The friends were convicted of rape, Morgan with aiding and abetting (since under British law he could not then be convicted of raping his wife); the jury considered their story "a pack of lies" and convicted all four.

However, the men appealed against the direction of the trial judge that "their belief in her consent must be reasonable." The objective (reasonable man) test is applied in a variety of criminal cases. The men argued that they had held an honest belief that she had consented. The court of appeal dismissed their case, but gave leave for further appeal to the House of Lords on the question "whether in rape a defendant can properly be convicted notwithstanding that he in fact believed the woman consented, if such belief was not based on reasonable grounds."

The Lords agreed that the appeal should fall, but also held that an honest, though mistaken belief in consent--however unlikely a reasonable man would be to hold such a belief--was a defense to rape. The Lords' decision was based on the importance of mens rea (guilty mind or criminal intent) in rape. They held that the act of rape is defined not just by the woman's lack of consent (the actus reus) but by the man's intention to commit it (mens rea). The prosecution has to prove both elements beyond reasonable doubt. They concluded therefore that the defendant needed either to know that the woman did not consent, or that he was reckless as to whether she consented or not.

Lord Hailsham explained the Lords' decision as follows: "Once one has accepted ... that the prohibited act in rape is non-consensual sexual intercourse, and that the guilty state of mind is an intention to commit it, it seems to me to follow as a matter of inexorable logic that there is no room either for a "defense" of honest belief or mistake, or of a defense of honest and reasonable belief or mistake. Either the prosecution proves that the accused had the requisite intent, or it does not."

It is noteworthy that the Lords, the appeal court, and the original trial jury, all held that the men were properly convicted. Morgan was subsequently placed on a statutory footing by the Sexual Offences Act 1956, s1, as amended 1976, which holds that a man commits rape if both of two conditions are met: that he has intercourse with a person who does not consent to it, and that at the time of intercourse "he knows that the person does not consent ... or is reckless as to whether that person consents."

"Knows" is the statutory endorsement of Morgan. Prior to this, a defendant's belief that a woman was consenting had essentially to be based on reasonable grounds. The Lords insisted that the jury, when considering whether a man actually held a belief in consent should take into account the reasonableness of such belief in their deliberations. Subsequent case law takes this on board: in Beckford v R (1988 AC 130) it was held that "where there are no reasonable grounds to hold a belief it will surely only be in exceptional circumstances that a jury will conclude that such a belief was or might have been held."

The Feminist Critique of Morgan

Few feminists have found themselves able to defend the Morgan principle. Four types of criticism have been leveled at it: first, it makes it easy for men to be acquitted in rape cases. Many feminists conclude that the Morgan requirement is too strong, and that it stacks the odds too far on the side of the accused. According to the British feminist academic Jane Ussher, "all the man has to say is 'I thought she wanted it really' and the law may be lenient." Some feminists suggest that rape should be one of strict liability--where all that would matter would be the woman's lack of consent, with no need to prove criminal intention on the man's part. The "Adonis" example is often used; it is said that under Morgan a man's inflated sense of his own irresistibility may make him proof against an accusation of rape.

Second, feminists contend that Morgan is out of kilter with the rest of the legal process, where an "objective" or "reasonableness" test is used to distinguish criminal conduct. The charge of handling stolen property, for example, includes such a test. Feminists reject the idea that property is entitled to protection in a way denied to women's bodies. Helena Kennedy argues that "the criteria should be absence of consent, not presence of dissent."

A third objection is that the Morgan principle gives greater credibility to the standpoint of men over that of women. Feminists have been concerned at the way that what happens in the woman's mind--that she did not consent to sex--is disregarded by the Morgan mens rea requirement. Natasha Walter correctly points out that even if the jury agrees the woman didn't consent they can still acquit: "while female speech is marginalized in the courtroom, the defendant's speech is privileged. If a man can show that he might well have believed the victim was consenting--reading screams as squeaks of pleasure, or resistance as play--he will be acquitted even if the jury believes that the woman was not consenting." This particularly offends those who wish to give greater credibility to the subjective experience of women and who reject the tradition of according the defendant the balance of doubt.

A final argument against Morgan proposed by feminists is that it allows men to behave in an unacceptable manner, which the law should attempt to correct. Feminists particularly object to the fact that the law makes no attempt to define consensual sex. For leading academic Sue Lees, the definition of "'normal sex' encompasses a male view of women acquiescing to sexual use by men." Lees objects particularly to the fact that the law does not punish men for failing to behave politely in sexual matters: "even if a man fails to read the woman's signals and to mutually negotiate sex, this need not be seen as rape."

Such British feminists take their cue from the work of American feminist academics interested in the law, including Catharine MacKinnon and Susan Estrich. MacKinnon goes as far as to argue that rape and sex are in fact indistinguishable: "compare victims' reports of rape with women's reports of sex. They look a lot alike.... In this light the major distinction between intercourse (normal) and rape (abnormal) is that the normal happens so often that one cannot get anyone to see anything wrong with it" (Toward a Feminist Theory of the State, p. 146).

Susan Estrich argues that a crime of negligent rape should be created to deal with men who behave unreasonably. Although there are few such men, the law should be able to deal with bad sexual behavior: "A man who voluntarily sheds his capacity to act and perceive reasonably should not be heard to complain here--any more than with respect to other crimes--that he is being punished in the absence of choice." For Estrich, such a standard of reasonableness signifies that a woman's consent is important enough for it to be given legal protection. Injury caused by intent rather than negligence may be greater, but being negligently penetrated without consent remains a grave harm.

Although these appear to be powerful arguments, none of them stands up to examination. The Morgan principle should be defended both by those committed to women's rights and by those concerned with civil liberties.

In Defense of Morgan

A defense of Morgan can be mounted on a number of fronts. In attributing blame to individuals the law continues to prioritize criminal intention, especially in offenses against the person. The law demands that to be convicted a defendant has to have conceived the intention to break the law. As such, the law holds citizens responsible for the choices they make and for the consequences of those choices. It is also important to explain why the law gives a set of privileges to the defendant. This principle is based on the seriousness of the consequences of breaking the law: those who do so will face severe penalties, including the possibility of the loss of their liberty. It is precisely because society attaches such importance to citizens taking responsibility for their behavior that we punish those who do so and that we ensure that such people are not punished without overwhelming evidence that they are to blame. The defendant has to be found guilty "beyond any reasonable doubt," and it is for society, through the courts, to prove his guilt to that extent.

Finally, changes to the Morgan principle should be resisted on feminist grounds--by emphasizing the capability of women to express their wishes, and by protesting the attempt to try rape according to different principles from other criminal offenses. The Morgan principle prioritizes the importance of criminal responsibility, for which mens rea is shorthand. For those who are responsible for their actions--who have chosen a particular course of action--the consequence of a criminal conviction is punishment. The law holds that such blame and censure are only appropriate if the offender was morally responsible for his behavior. Moral responsibility is attributed to those who understand the social norms to which they are subject and can understand and accept responsibility for wrongdoing. Political freedom assumes that people should be free from punishment unless they voluntarily choose to break the law. The concept of criminal guilt and therefore of responsibility are based on a conception of the rational agency of the individual who makes a choice to commit crime.

Individuals may act recklessly (in rape without caring less whether the woman consented, or without considering it in the first place, which is considered to be the same as intending to have sex without consent and therefore criminally blameworthy), or negligently (failing to exercise care as would a reasonable person). Negligence is not generally regarded as a criminal matter since it involves no mens rea. Without such criminal intent, traditional reasons for convicting someone of a criminal offense become nonsensical. Punishment is meaningless if the defendant did not intend his actions; deterrence makes no sense since the defendant did not foresee the outcome of his action; there is no considered behavior which would benefit from rehabilitation; and retribution is reserved for those who are morally blameworthy.

In this light, the legal objections to Morgan fall. It is not the case that rape is differently treated from other offenses against the person. In all such crimes, the lowest standard is one of recklessness. There is in general no crime of negligence in offenses against the person; the law demands that there be intention before convicting.

The example of homicide is instructive. Murder is homicide with "malice aforethought." There are three types of "involuntary" manslaughter, where although the defendant does not have the intention to commit the homicide, he can nonetheless be seen as blameworthy; subjective or reckless manslaughter (which is a similar principle to recklessness in rape); constructive manslaughter, where an unintentional killing is committed during the commission of another criminal act, for which the defendant is held responsible; and "gross negligence" manslaughter. However, it would be bizarre to institute a crime of gross negligence rape. Unlike homicide, sex cannot be entered into accidentally or negligently. Sex is defined by the way it is carried out--on the basis of a conscious decision. The law recognizes implicitly that unlike a homicide, where there is a dead body to account for, the sex act in itself is not harmful.

Put more strongly, mens rea is the basis of society's condemnation of the guilty. If a man can be convicted of rape without intent--in other words through mistake--then how can we hold him responsible for his actions? How can we condemn him for not acting otherwise? The principle of human agency--of making choices and being held accountable for them--is the basis both of innocence and of guilt.

Feminists are at best mistaken and at worst disingenuous if they argue for changes in the law of rape on the lines that it is tried differently from other offenses against the person. More such amendments to the law would separate rape even further from other offenses. Too often victims of rape are told that it is an offense different from any other. The implication is that it is impossible to recover from rape. The mounting number of special measures used to try rape can only contribute to the perception that it is an extraordinary crime, and to the particular types of guilt and trauma associated with rape victims. It would be far more helpful if rape were brought into line with other offenses against the person--when, however terrible the assault, it is tried in the same way without establishing new legal approaches.

Feminists' arguments, such as Lees', are essentially that rape should be one of strict liability--where what matters is only the woman's lack of consent, and no criminal intention need be proven. This argument goes contrary to the principle that individuals should only be punished where they have deliberately broken the law, and that punishment should be reserved for those who have acted freely: unless a man has the capacity and a fair opportunity to adjust his behavior to the law its penalties ought not to be applied to him. By punishing where there has been a choice to do wrong the law acknowledges this and offers members of society the right to self-determination. The law recognizes the importance of self-determination by in general refusing to apply the penalty of imprisonment in strict liability cases.

The law has proven itself entirely capable of dealing with "Adonis"; he is likely to deserve conviction on the basis of recklessness (not caring) whether or not the woman consented. Men have been properly convicted in the absence of mens rea on the basis of intoxicated mistake, for example. It is important to note that the Morgan verdict, where the jurors (and all higher courts) agreed that the men's story was "a pack of lies," indicates that juries are quite well able to draw just conclusions on the basis of the evidence. In this case they concluded that the men lied about their honest belief in Mrs. Morgan's consent, and agreed that they had in fact formed the intention to rape her.

It may appear absurd to hold that a man should--in fact must--be acquitted if he did not intend to rape even if the jury agrees the woman didn't consent. Rape (and particularly acquaintance rape) is certainly a crime that is hard to prove. But this is for good reason. The law does not give priority to the interests of men over those of women. It does regard the interests of defendants above those of complainants. The defendant is protected from unjust accusation, from being deprived of his rights as a citizen, by the burden of proof rule. It is the prosecution that has to prove, beyond reasonable doubt, both that the complainant did not consent and that the defendant intended to rape her.

Feminists should bear in mind the importance of such assumptions about the capabilities of defendants, for women are also defendants. As argued above, the law assumes agency and responsibility on the part of all citizens judged competent to stand trial. These assumptions are important both for men and women. The move away from this universal assumption about human qualities can be dangerous for women. Too often in the debate on rape law reform the conception of special protections for rape victims, primarily women (who are assumed to lack agency) are being formalized in law, formalizing their presentation as less-than-human.

The feminist case for rape law reform is often--implicitly or explicitly--based on the idea that sex and rape, particularly as defined by law, bear a distinct similarity to one another. As MacKinnon has argued, backed by Andrea Dworkin and others ("romance is rape embellished with meaningful looks"), many feminists appear to believe that what we would commonly understand as normal sex should be subject to legal penalties--that the law should act to promote particular types of human behavior. Feminists such as Lees have argued that the law should promote "communicative" sex--and therefore that it should penalize the non-communicative. She argues that "calling rape violence fails to address the coercive nature of some male sexual behavior."

The radical argument that rape and sex are similar has become increasingly popular among British feminists. Lorraine Kelly and Jill Radford claim that the law's distinction between rape and sex is problematic since it "suggests that clear distinctions can be drawn between violence and non-violence and thereby between abusive and 'normal' men." But the law correctly recognizes that having sex is no crime. The definition of rape codifies this by presupposing the notion that the rapist is one who intends to commit a crime, rather than a sexual act. Rape is defined in law by the intent (or knowledge) to commit rape on a woman who does not consent. The law is framed in this way precisely to ensure that rape is distinguished from sex; it says that the enthusiastic seducer is not punished for rape. The law refuses to punish mistakes, lack of courtesy, or even aggression in personal relationships. Its purpose is to punish men who force women to have sex against their will.

It is important to see rape as a violent assault, qualitatively different from our normal sexual experiences, however unsatisfactory they may be. This may be an old-fashioned and rather commonsensical view; it is one view still supported by Germaine Greer, who argues that there should be no specific crime of rape, and that it should be prosecuted as assault. Yet Greer's is a deeply unpopular view among feminists today, who, like Lees, want to argue that much of the sex between men and women is problematic and abusive.

When applied to sexual matters the removal of the principle that to commit rape requires intention would mean that sex would be made into a criminal activity, with reasonable belief in consent as a defense to the crime. Some feminists approach such a view, and many are explicit that they see the role of the law as developing more "appropriate" sexual behavior, in particular by discouraging any displays of sexual aggression on the part of men, and encouraging "communicative" sex.

It would be a major step to argue that the law should police sexual behavior that has never been defined as criminal, that includes no criminal intention, and that most of society would not currently see as deserving criminal penalties. Some feminists are proposing that the focus of the law should shift, towards encouraging, and penalizing, inconsiderate behavior. The kind of intervention into private life that would be involved is immense, and the idea of having bedroom behavior subject to criminal penalties is alarming.

Finally, underlying much of the discussion is an assumption that women are incapable of clearly expressing their wishes and desires without the support of the law and the authorities. Many feminists seem to assume that women bear no responsibility for communicating what they want or do not want sexually--in this view perhaps raped women simply lie there without protest while they are abused. But there is some responsibility on women--especially if we hold to a view of mutuality in sexual relationships--to explain what they want and to say no to what they do not want.

The argument that it is the absence of consent, not the presence of dissent that must be proven poses a particularly passive view of women's ability to deal with unwanted sexual behavior. Women are perfectly capable of sexual negotiation and of expressing clearly what they want or do not want. This is surely the basis of the slogan "no means no." Some feminists clearly prefer a legal approach where sex is only legal if women say "yes" clearly (preferably in writing).

Essentially, the law works on the basis of an assumption of women's responsibility and agency in sexual matters. It assumes that women are able to--and therefore must take responsibility for--making it clear what they want. The law currently says that where women do so, and men coerce women (whether violently or not) into sex, then they are guilty of rape. The law distinguishes between coercion and seduction. Coercion is criminal because it means intent--seduction is simply that--persuasion. Seduction can turn into rape if the woman makes her wishes clear--but the law recognizes women's agency in making it clear that she needs to do so.

Once radical feminist ideas--e.g., the suspicion of sex between men and women; the demand that women should always be believed and that they never lie about rape and that the law should be more interventionist in policing men's behavior--have been politicized in Britain. Policy makers and politicians have seized upon such ideas, thus creating a climate increasingly hostile to civil liberties even as they claim their real interest is to be supportive of victims. Demands to increase the conviction rate in rape cases (to lock more men up on less evidence) through a more inquisitorial approach to rape trials have become commonplace. New precedents are being set, which call into question the central idea of equality before the law for men and women. Much remains to be done to question the authoritarian assumptions made in this increasingly politicized discussion of rape law.

SUGGESTED FURTHER READINGS

Clarkson, C.M.V. and Keating, H. Criminal Law. London: Sweet and Maxwell, 1998.

Estrich, S. 95 Yale Law Journal 1087, in Sourcebook on Feminist Jurisprudence, Barnett, H (ed.), London: Cavendish, 1997.

Hester, M.; Kelly, L., and Radford, J. Women, Violence and Male Power. London: Oxford University Press, 1996.

Lees, S. Carnal Knowledge. New York: Penguin, 1996.

Ussher, J.M. Fantasies of Femininity. New York: Penguin, 1997.

Walter, N. The New Feminism. Boston: Little, Brown, 1998.

~~~~~~~~

By Sara Hinchliffe

Sara Hinchliffe teaches women's studies at the University of Sussex in the United Kingdom. She is working on feminist critiques of equality, especially in the law.


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Source: Society, May/Jun2000, Vol. 37 Issue 4, p57, 6p.
Item Number: 3035399

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