The will be included, as well as a brief

The present essay aims to
provide the reader with a clear idea of how violent offending as evolved over
the past 30 years. Violent offences are those that involve a person being
physically threatened and/or hurt. The key element is intention from the offender
to cause bodily harm, regardless of whether such does indeed occur (Victim
Support, n.d.). Crimes such as gang violence, hate crimes, murder and sexual
offences are included. However, this essay will only focus on rape relating to
adult victims with a healthy mental capacity within the United Kingdom (UK). It
purposes to show how the UK’s Criminal Justice System (CJS) tried to adjust the
offence of rape, its definition and its components, to society’s evolution. Key
cases will be included, as well as a brief discussion on how some changes may
or may not have improved the effectiveness and equality of all before the law.
The incidence of the offence of rape throughout the years will also be
discussed, as well as a brief idea of how juries’ personal views can affect the
final verdict.

Rape is currently defined,
according to section 1 of the Sexual Offences Act (SOA) 2003, as intentional
penetration of another’s vagina, anus or mouth with the defendant’s penis. The
complainant cannot consent to the sexual intercourse and the defendant shall
not reasonably believe such permission is given. A belief is to be regarded as
reasonable, by considering the steps taken by the defendant to ensure that the
victim was consenting (SOA 2003, section 1, (2)). The means rea (the
state of mind of the defendant at the time of the offence) for rape is the
intention to penetrate and the lack of reasonable belief in the victim’s
consent. On the other hand, the actus reus (all the elements of the
offence except the state of mind of the offender) is the action of penetrating
the victim and her/his` lack of consent.

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Consent is when someone
“agrees by choice, and has the freedom and capacity to make that choice” (SOA
2003, section 74). This definition was only introduced into the law by the SOA
2003, which could mean that prior to that, verdicts were given according to
various meanings of consent, thus jeopardising the right to a fair trial.

Previously, rape was defined
by the Sexual Offences Act 1976, section 1 as the “unlawful sexual intercourse
with a woman who at the time of the intercourse does not consent to it”. This,
in conjunction with the fact that the defendant at the time of the offence is
aware “that she does not consent (…) or he is reckless as to whether she
consents to it” (SOA 1976, chapter 82, section 1). The change that occurred
with the definition of rape in 2003 came to clarify victims as to its full
extent, as well as including oral rape as an offence punishable by law. It also
introduced the idea of reasonable steps taken by the offender to ensure the
victim’s consent, which could be a way to ensure a fairer trial for both the
complainant and the accused.

In Kaitamaki v The Queen
(1985), it was firstly stated within the law that penetration is a continuing
act that only ends once the offender’s penis is removed from one’s mouth, anus
or vagina. This gave an even clearer idea to victims of what rape really is.

In R v Ismail (2005), a
16-year-old girl was raped through oral penile penetration. In court, Mr.
Barradell stated that “the fact that this was oral rape does not mean that it
is any less serious than vaginal or anal rape”, as there is still the
possibility of contracting sexually transmitted diseases when no protection is
used. This was important to raise awareness to other forms of rape, rather than
just focus on vaginal penetration.

Moreover, men were firstly
included as possible victims of this offence by the Criminal Justice and Public
Order Act (CJPOA) 1994, section 142, were rape was defined as an offence
committed by a man to a woman or another man through vaginal or anal
intercourse without the other’s consent. The defendant must be aware of the
lack of consent or be reckless in relation to it. This section also established
that a man can be charged with rape if he persuades a married woman into having
a sexual relationship with him, by posing as her husband.

Furthermore, the case of DPP
v K and C (1997) came to confirm the idea that woman can also be convicted of
rape as secondary elements, if they possess the required elements of the
offence of rape. In this case, it was the intention to penetrate the victim, as
well as the lack of reasonable belief in her consent, that led them to be
convicted of rape. Contrarily, a woman who through a gender reassignment
surgery has a constructed penis, can be convicted of rape as a primary element,
according to SOA 2003 section 79 (3).

Another significant milestone
in relation to rape was the one condemning marital sexual intercourse without
consent. As opposed to what was proposed by Hale in 1736 (as cited by Lord
Keith in R v R (1991)), that a woman through marriage would give “irrevocable
consent to sexual intercourse with her husband under all circumstances and
irrespective of the state of her health or how she happens to be feeling at the
time”. In R v R (1991), the husband broke into the house where his wife was
staying and acted violently towards her in an attempt to rape her. Although
they were in the process of divorcing, this was not yet official, so the
defendant appealed on the basis of Hale’s 1736 statement. However, the case
judge stated that consent to sexual intercourse with one’s wife/husband may be
withdrawn, as soon as one or both parties withdraws from cohabitation. Such
indicates that consent, supposedly given by marriage, has lost his effect. In
such a modern era, where marriage is seen as a partnership were equality should
be the main characteristics, it cannot be accepted that women should obey and
satisfy their partner’s sexual desires (R V R 1991).

In relation to consent, it is
divided in two. Firstly, as irrebuttable which is explained by section 76 of
the 2003 SOA. It essentially states that, under the circumstances appointed in
subsection 2, consent could never be given by the victim, so the defendant is
to be charged with rape. This occurs when the offender deceives the victim “as
to the nature or purpose of the relevant act” or when the defendant
impersonates someone known by the victim. Secondly, and probably the cause of
wider controversy, is section 75 of the SOA 2003 which encompasses the
rebuttable consent. This is when, under certain circumstances, it is for the
defendant to provide enough evidence in order to prove that consent was given
or that he reasonably believed in it. The situations are: when violence is used
or threatened against the victim or another person (a) and (b); when the
complainant is tied up, asleep or unconscious preventing movement and,
consequently, escape (c) and (d); if the victim is unable to share whether
she agrees to the relevant act or not, due to a physical disability (e); or
when the victim is given or administered, without consent, a substance capable
of overpowering, making it impossible to escape the unwanted sexual relation
(f). This last one is a matter that has divided opinions and raised
questions. In R v Abbes (2004), where the complainant was allegedly raped,
however she was under the influence of alcohol when it happened, leading her to
lose consciousness and become vulnerable. Since the alcohol consumption was
voluntary, section 75 (f) of the SOA 2003 cannot be applied. Even though, in
this case other matters were involved, the issue relating drunken consent has
always raised doubts. In R v Fotheringham (1989), Mr. Glen’s stated that “in
rape self-induced intoxication is no defence, whether the issue be intention,
consent or, as here, mistake as to the identity of the victim”, being this a
decision that would still apply after the SOA 2003. In R v Bree (2007), the
defendant and the complainant had been drinking a considerable amount of
alcohol, which led the complainant to experience losses of memory of the events
of that night. She allegedly suffered oral and vaginal rape. There are, in her
statement, signs of her dislike and lack of consent (noises, changes in her
position). However, the defendant stated that he was positive that she was
aware of the situation and that she wanted it to proceed. In resume, both were
affected by severe amounts of alcohol which they drank out of free will. The
question was whether the victim had indeed consented or had the capacity to
consent to the situation. For the defence, the complainant was sober enough to
consent to Bree’s sexual advances and it was her wish for it to happen. For the
complainant, the defendant used her time of weakness to make sexual advances
which she did not want, but was too drunk to show, in full. The court’s
position was that:

 

“If, through
drink (…) the Complainant has temporarily lost her capacity to choose whether
to have intercourse on the relevant occasion, she is not consenting, and
subject to questions about the Defendant’s state of mind, if intercourse takes
place, this would be rape. However, where the Complainant has voluntarily
consumed even substantial quantities of alcohol, but nevertheless remains
capable of choosing whether or not to have intercourse, and in drink agrees to
do so, this would not be rape.”

 

Initially and because the victim was
still capable of choosing her position as to whether or not she wanted to have sexual
intercourse and her decision was negative, the court decided that Bree should
be convicted of rape. However, this verdict was then quashed by the Court of
Appeal, on the basis of lack of guidance by the court to the jury in relation
to capacity and consent in cases of voluntarily intoxication. There was also an
important reference to the case of R v Malone (1998) where it was stated that
lack of physical resistance by the victim cannot be understood as consent to
engage in sexual advances. An article by Rumney and Fenton (2008) pointed out
the need to create a decision or a statute that could serve as a model for
further similar cases. However, such may be very difficult to achieve as one
cannot simply define a level of alcohol as of individuals lose their capacity
to choose whether they want to consent or not. Everyone is different and one’s
alcohol resistance varies, from people to people and from day to day.

In DPP v Morgan (1976), three
men had been out drinking when they were approached by another man who
convinced them to go to his house and have sexual intercourse with his wife
while he was watching. He warned the others that, even though his wife could
show some resistance to it, she was not against it. The three men went on to do
what the other proposed. The wife showed lack of consent, but still was forced
to engage in the sexual relationship. She then went to the hospital to treat
her bruises and filed a rape complaint. In court, the judge directed the jury
to the fact that the accused’s belief in the wife’s consent needed to be a
reasonable one, as they stated that they realistically believed in her consent.
The House of Lords, however, stated that no jury would ever believe that the
men’s belief was reasonable under those circumstances, having taken into
consideration the fact that the woman showed her lack of consent multiple
times, wherefore there could not be a doubt in relation to it). As a way of
avoiding justice applied in a non-constant and equal way, this idea of
reasonable belief was better explained in the SOA 2003, to prevent victims from
seeing their rights being poorly defended before the law.

In regard to the incidence of
rape in the UK, it has suffered a severe increase between the 1st of
April 2002 and the 31st of March 2017. According to the Office for
National Statistics UK (n.d.), in 2002/2003 the number of rape offences
reported to the police was 12,295, whereas in 2016/2017 this number had gone up
to 41,150. This means that in 14 years there has been as increase of 28,855
offences. According to Rape Crisis England & Wales (2017 (b)), their
centres over the UK received 202,666 calls during the years of 2016-2017.
According to official statistics by the GOV.UK (2013), in 2005 only 796
offenders were found guilty in all courts of rape. In 2011, the number
increased with 1,153 offenders being found guilty in all courts of the offence
of rape. These numbers are already high, however according to the Crime Survey
for England and Wales, this might not show the full extent of the problem (Morrison,
1995). Individuals are still reluctant about reporting an offence they were
victims of to the police. This can be justified by the fact that people might
not trust the police enough to solve the issue or because one believes nothing
can be done in relation to it (Morrison, 1995). This can also be explained by
some of the myths associated with this offence. For instance, the fact that
people believe that if one drinks voluntarily a great amount of alcohol and
ends up being raped, the blame lies with them for drinking too much (Rape
Crisis England & Wales, 2017 (a)). Although it is a controversial subject,
the presumption is that the victim is right and must be protected by the law.
The findings reached by Amnesty International UK in 2005 may also justify such
lack of reporting for offences, particularly rape. Their research came out
showing that women are blamed for the way they dress, for drinking, for men who
perceived them as uninhibited and interested, amongst other things. The
findings reveal that 26% of people think that a woman who dresses in a sexy way
is guilty for being raped. Also, 30% believes that a woman is in part or
totally responsible for being raped if drunk. The vast majority of UK’s society
does not know how so many women are raped every year. A study conducted by
Finch and Munro (2004, as cited in Rumney and Fenton, 2008), concluded that
some jurors think “that women who drink or flirt with men, or who take steps to
initiate some intimacy, cannot complain when men take this behaviour imply
willingness to engage in intercourse thereafter”. This is the scary reality.
People are victim-blaming and are still not very open to controversial issues,
such as women’s independence or voluntarily drinking.

Although numerous changes
have been made to the offence of rape, there is still the need to alter one or
other matter, for instance in relation to consent. The law should be something
dynamic, that keeps up with society’s development. However, it is already a
positive aspect that men were included as possible victims and that women
stopped being seen as an object that can be used by husbands whenever they wish
to, with the recognition of marital rape.

Furthermore, the increase in
rape’s incidence should be seen by the government as a wake up call to invest
in both protection, revision of the law and verdicts that may be
victim-blaming. Attention should be given to juries to avoid decision that
might put one’s rights to a fair trial at stake.

Time and persistence by those
who want equality for all will, hopefully lead to changes that will be
beneficial for all.