Rape
Rape is a form of sexual assault characterized by penile penetration, without the consent of an individual. The lack of consent was a key aspect of rape for a long time because consent was undefined for the first time until it was given a legal definition by the Sexual Offenses Act 2003. This essay examines whether the Act has enhanced the comprehension and application of rape law consent, the statutory definition of consent and how the law operates in incidences of rape cases. There were no statute-specific guidelines on consent and the belief in consent was in play before the 2003 Act came into force. Consequently, the meaning of consent was a common law question. In cases by R v Olugboja concerning the question of consent or pure appearance of the victim to sex, the Court of Appeal sought to define a limited concept of consent (Gardner, 1996). The court did not rigidly prescribe to the kind of pressure and to what amount the sort of pressure would be necessary to give a person an agreement to merely submit to a relationship.
The goal of this versatile approach was to safeguard different individuals’ sexual autonomy. The results of the trials would be uncertain and susceptible to the perception of the rape myth. If the jury were left with wide discretion and asked to apply their common sense and knowledge, then legal jurors who fail to understand the complex legal notion of consent may use rape myths and traditional sex paradigms to guide their decisions.
For example, jurors may think that her silence is only disguised consent just because the victim did not fight actively. Having investigated these issues, the paper considers how the new concept of the consent in Section 74 of the Act of 2003 has been applied in practice and whether legal ambiguity has been minimized by providing a description of consent which legal practitioners and lawyers can easily understand. Under section 74, an individual consents to choose has the right to choose and has independence of choice. The notion of freedom signifies the basic foundation of sexual relations to be mutual respect and understanding and that this should be attained by communication and agreement. The purpose of this idea was to focus the violation trial on whether or not the victim resisted the actions taken by the defendant and aimed at verifying mutual understanding. Since rape myths mainly focus on how the victim reacts to the incident, the jury may be distracted from the myths of rape by removing it as the focus of rape trials. However, it is doubtful whether the shift is demonstrated in actual rape cases.
In rape trials, victims have to provide evidence and be cross-examined without substantiated evidence of non-agreement. Defence counsel may argue that the form of dressing, actions and conduct of the victim contributed to non-verbal approval. Two other main consent components under Section 74 are independence and preference. Unfortunately, when a person lacks the freedom to make a choice, there is no further clarification or description to be made. In R v Jheeta the Court of Appeal did not take the opportunity to clarify the matters further. The Jheeta and Kirk decisions only vitiate consent when the pressure is so severe that the defendant is overriding the freedom of the plaintiff to choose whether or not to agree (Fitzpatrick, 2008). Thus the problem of “freedom” and “choice” depends on the subjective state of mind of the victim to show if any form of pressure was subjected; this means that the primary focus of a violent trial remains on the victim and what they have to say about the incident.
This issue has caused a lot of controversies, especially in cases of voluntary intoxication of the victim. This proposed definition was not incorporated into the 2003 Law, despite the recommendation by the home office that ‘capacity’ be defined statutorily. The task to clarify the problems of ‘capacity’ and poisoning is crucial because the sexual behaviour of an individual is affirmatively a reflection of themselves and thus making the aspect of self-determination difficult to identify. The Court of Appeal in R v Bree stated remarkably that drunken consent still exists and poisoning does not necessarily incapacitate the complainant to grant consent (Wallerstein, 2009). The findings of any rape case that is related to drunk consent are once again left in the hands of the jury following the specific circumstances and evidence provided.
This has been a major issue as the decision made has a great impact on the lives of the victim and perpetrator. Firstly, drunken intent is still intentional under the principle that applies to poisoned offenders. The voluntary intake of alcohol is depicted as an offence and the victim-inflicted culture in society can be exacerbated by drawing a close relationship between drunken offenders and drunk victims. Secondly, the Court’s refusal to establish a certain degree to negate consent effectively reintroduced into law the flexible but problematic approach of Olugboja. Jurors have a broad discretion at their table once again. Several empirical studies have shown that the public and thus the jurors generally reject the account of a complainant who claims to be raped while being freely intoxicated.
In conclusion, the interpretation in section 74 does not explain the ambiguous ‘power’ term and gives jurors too much discretion on rape trials. It is necessary to additional definitions or guidance in these cases since the victim of rape cases need to have faith in the law. However, the question of prevalent rape myths can not be dealt with by merely amending the legislative language. Corporate education is necessary along with legal reform to address misconceptions not just in the courtrooms but most importantly in the outside society.
Works Cited.
Fitzpatrick, B. (2008). Rape: Consent: R v Jheeta (Harvinder Singh)[2007] EWCA Crim 1699. The Journal of Criminal Law, 72(1), 11-22.
Gardner, S. (1996) “Appreciating Olugboja”, Legal Studies 275-297.
Wallerstein, S. (2009). ‘Drunken consent is still consent’—or Is It? A Critical Analysis of the Law on a Drunken Consent to Sex Following Bree. The Journal of Criminal Law, 73(4), 318-344.