Sexual Offences Act 2003

BACKGROUND INFO

Rape has always been a difficult crime for victims to report to the police. In 2004-5, there were 12,867 reported cases to the police.  Contrast this with the British Crime Survey’s figures (based not on what has been reported but rather on interviews with the public) which shows figures for single years as high as 61,000 – generally, only a quarter of actual rapes are believed to be reported. Recent figures have, however, suggested that the reporting of rape has steadily risen since the 1980s saw a movement to try and empathise with female sufferers via the training of more female police officers, victim support, etc.
There is also a great concern that the conviction rate for rape is low and falling. Harris and Grace in A Question of Evidence found that during the 1990s, fewer than 10 per cent of recorded rapes resulted in successful prosecution. By 2005, the figure stood at 7 per cent and has reached as low as 6 per cent in recent times (according to Home Office Figures).
These two above problems are what has led to the reform movement which eventually culminated in the 2003 Sexual Offences Act.

THE ROAD TO REFORM

Prior to this reform the law on sexual offences was based on legislation implemented in 1956, with some parts dating as far back as the 19^th Century. A number of important amendments had been made since the 1956 legislation, including the inclusion of marital rape and male rape in 1994. However, these piecemeal changes resulted in very confusing laws, to the extent that many different Acts had to be accessed in order to decipher where the law stood on any given matter. The Home Office acknowledged that this had led to a ‘patchwork quilt of provisions’ (Home Office). The previous law was also plagued by anomalies, inappropriate language and discrimination.

In 1997 New Labour pledged to restore justice and a detailed review process was initiated in 1999 (‘the sexual offences review’). This was followed by a sexual offences Bill and then, finally, the arrival of the sexual offences act 2003, which came into force in May 2004.

WHAT WAS THE PROBLEM WITH THE OLD LAW?

Aside from the poor conviction rates and the lack of cases even making it to court, feminists have been keen to point out that the existing law was biased in favour of men (R v Morgan [1976] said that an honest mistaken belief in consent should lead to acquittal even if this belief is not a ‘reasonable’ one), and disjointed (the law has developed piece-meal; marital rape/rape of men added in 1994, but no codified statute until the 2003 reform proposals). Commentators have warned that attrition may actually be even higher than research has found because such studies do not take into account rapes that are reported to but not recorded by the police, or any convictions that are overturned on appeal. New research has found that around one in ten convicted rapists later have their convictions overturned or sentence reduced on appeal.

HOW DID THE REVIEW PROCESS AIM TO PROMOTE JUSTICE?

The 1999 review was guided by a lot of feminists (academics and campaigners) whose reports led to David Blunket’s 2000 White Paper, where he described the old law as ‘archaic’, ‘incoherent’ and ‘discriminatory’.

THE 2003 SEXUAL OFFENCES ACT

1. ACTUS REUS OF RAPE

Although other parts of the Sexual Offences Act 1956 were revised between 1995 and 2003 (ie. marital rape, men being raped), the actus reus of rape retained its definition until the 2003 Act; the old law defined the actus reus as being ‘unlawful intercourse with a woman’, whilst the new Act has broadened the definition to ‘penile penetration of the vagina, anus or mouth of another person without their consent’. The Actus Reus therefore created a gender-specfic offence for offenders, but a gender-neutral offence for victims.

The most significant aspect here though, is the issue of consent. Of the three lines of defence for defendants (denial of the event, denial it was them and belief of consent), consent is the most heavily relied on (DNA testing has rendered the other two obsolete for most part). Since there has been no previous statutory definition of consent, the courts have adopted various tests but have found consent a difficult issue to tackle. Olugboja [1981] referred to consent as a ‘state of mind’ and said the jury should attempt to determine the victim’s state of mind, whilst Temkin [2002] referred to the ‘category approach’ where consent is automatically deemed to be absent in certain situations.

The 2003 Act, s. 74, states that ‘a person consents if s/he agrees by choice, and has freedom and capacity to make that choice’ and also backs the ‘category approach’ for listed categories. However, the 2003 Act differentiates between six categories where consent is presumed to be absent, unless there is sufficient evidence to the contrary to raise an issue that the defendant reasonably believed that the victim consented, and two categories where consent is conclusively presumed to be absent.  This means that the issue of consent still, to some extent, relies upon the mental state of the defendant, even in cases such as where the victim was asleep, experiencing violence from the defendant, or unlawfully detained, although the burden of proof is reversed in these situations with the defendant required to demonstrate the steps he took to ascertain consent. Nonetheless, defendants will be considered most unlikely to have willingly agreed to sex if they were unconscious, drugged, abducted, subject to threats or fear of serious harm, or incapable of giving consent because of learning disability or mental disorder, and so it is generally regarded as a bit of a victory for the feminists.

NB:// highlight sections; where situations in s.76 occur, lack of consent is irrebuttably presumed, in other circumstances there is a rebuttable presumption of lack of consent (s.75) and finally, s.74 where there is a lack of consent not relating to the above categories.


2. THE MENS REA OF RAPE

The mens rea is based on the premise that an individual should not be punished for an offence that they did not know they were committing at the time of the act.

The ‘mistaken belief’ clause was first introduced in Morgan in 1976 when a husband colluded in the raping of his wife by three of his friends. He allegedly told his friends that his wife would struggle and say ‘no’, as though she did not want to have intercourse with them, but that this ‘turned her on’.  The accused men claimed that they honestly believed she was enjoying it and consenting and that they did not intend to rape her – in other words they never had a guilty mind. Although in the Morgan case the men were convicted, and the husband convicted of aiding and abetting, this case set a new precedent. The House of Lords ruled that if a man honestly believed that a woman consented, regardless of how unreasonable this belief was, he could not be found guilty of rape.

Feminist groups campaigned for many years that the mistaken belief defence should be based on some test of reasonableness or that it should be abolished altogether. These are issues that have been widely debated throughout the common-law world. In Australia this issue divided rape law reform campaigners into two groups; the ‘subjectivists’ who argued that the Morgan ruling should be upheld – i.e. if a man honestly believes that a woman consents to sexual intercourse regardless of how unreasonable that belief is he should not be found guilty of rape, and the ‘objectivists’, who argue that the belief should be reasonable. The 1999 review campaigned rigorously to change it.

The result is manifest in s. 1(c) of the 2003 Act; mens rea of rape; ‘A does not reasonably believe that B consents’, with regard for circumstances such as steps taken by A to ascertain whether B consents. As Jefferson states, it overrules cases such as Morgan where a man does not believe on reasonable grounds that a woman was consenting.


WHAT WILL THE ABOVE ACTUALLY ACHIEVE?

It is generally too early for us to say statistically. Commentators have speculated as to what the above changes might achieve; many have been complimentary of change in the mens rea to impose a more objective test on belief of consent, though again, its application at common law has not been tested yet and so it is mere speculation. The issues surrounding consent remain a problem for many commentators; why is there a conclusive presumption against consent where the victim is deceived, but only an evidential presumption where the victim has been drugged or is asleep?
Some commentators have been very outspoken in criticizing the new Act. Josie Appleton says it treats women as ‘feeble creatures who need to be asked for consent’... ‘It suggests that after a few glasses of wine they lose all capacity to make choices’ and that ‘the presumption of innocence is in effect being overturned here, placing the burden of proof on the accused. As a result, innocent men could end up in jail.’

If you want to get philosophical, you might say that there is only so much the law can change – the real issue is a deep rooted need for change in society and the attitudes of men. On a similar point, Oldberg-Ambrose suggests that law reform should not focus on the strict rules, but rather on the trial process, particularly on how rules of evidence and the ways in which rape cases are constructed relate to social perceptions of gender, coercion and sexuality.