The Sexual offences Act 2003 finally made rape laws just. Critically Discuss.

Introduction

Till as late as 2003, rape trials in the UK suffered from the malignant flaws that went against the fundamental rights of rape victims, and that had no place in the 20th century. The attrition rate was very high, it was difficult to prove non-consent in an adversarial system that is structured to be in favour of the accused, and victims were still being asked about their previous sexual behaviour in court to prove that they were promiscuous, and were somehow responsible for what had happened to them.

The enactment of the Sexual Offences Act 2003, implemented in 2004, has gone a long way to correct these problems in the criminal justice system and protect the dignity of the victims of rape. In this paper, the reforms are discussed in order to see whether they really go to making rape laws just in the UK.

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Reforms in Rape Law

Prior to the enactment of the Sexual Offences Act 2003 (the SOA 2003), the law was based for most part in the Sexual Offences Act 1956 and common law dating back more than a century. Consider Morgan v DPP1 , in which the court held that a ‘mistaken’ but ‘honest’ belief in consent should lead to an acquittal even if this belief in consent is not a ‘reasonable’ one2 (the ‘mistaken belief’ clause).

The basic problems that troubled in relation to the rape laws rose from the fact of an adversarial process, in which proving non-consent, cross-examination, and the use of sexual history evidence in court went against the victim and the onus was on the prosecution to prove the crime. This led to the high levels of attrition rate and many victims of the crime had to see the offenders go free due to these technicalities of the existing law. Another important aspect of this is related to the European Convention of Human Rights (ECHR) and the Human Rights Act 1998 (HRA 1998), which enacted the ECHR rights in the UK. The courts have been given the power to declare the provisions indomestic law as incompatible with the ECHR. In this the courts are guided by the convention as well as the jurisprudence developed by the European Court of Human Rights (ECtHR). The ECtHR has held governments liable for failure to enact appropriate rape legislation. In X and Y v The Netherlands3 and M.C. v Bulgaria4 , the ECtHR had held the state liable for not passing rape legislation in tune with the Convention rights.

The reforms were therefore long awaited and initiated by the government. In a White Paper titled ‘Justice for All’,5 the government presented its views on reforms of rape laws and this ultimately led to the enactment of the SOA 2003. In the White Paper, the government informed of the changes that had already been set in motion with respect to rape trials. For instance, since September 2000 there was a ban on defendants without legal representation cross-examining rape victims personally, so that rape victims are not put through the ordeal of facing questioning from those accused of committing the offence.6 Furthermore, rape victims could not be questioned of their sexual history in court anymore. It is pertinent to note here that the controversial question of marital rape had already been set to rights in R v R, where the Court of Appeal observed: “We take the view that the time has now arrived when the law should declare a rapist a rapist subject to the criminal law, irrespective of his relationship with his victim.”7 All of these were welcome changes and the law was further fortified in the new SOA 2003.

Home Secretary David Blunkett’s views on this echoed that of the government when he said: “The law on sex offences is widely recognised as archaic, incoherent and discriminatory. Much of it belongs to an age before the light bulb or motor car yet we now live in a world of global communications, with children two clicks away from Internet porn sites generated by a multi- million pound sex industry.”8

The acts reus of rape has been widened by the definition of rape “as penile penetration of the vagina, anus or mouth of another person without their consent.”9 This makes the offence of rape gender-specific for offender but gender-neutral for the victim. As gay men too are subjected to the offence, this helps them get justice irrespective of the fact that they are men. This is as per the recommendations in the Sexual Offences Review that took place prior to the passage of this Act.10 Another important point to make here is that other than penile penetration, assault by penetration with objects is also recognised under the Act.11

Proving non-consent was difficult under the previous justice system. Now, the SOA 2003, s.74 defines consent to mean, “a person consents if he agrees by choice, and has the freedom and capacity to make that choice.” There is a presumption of absence of consent and the burden of proof is reversed with the defendant having to show what he did to ascertain consent.12 Another important aspect of the new law is the special offences created in case of rape of children under 13 years of age, child sex offences and abuse of position of trust. The defences available in rape case

Conclusion

The rape law has been made more just with the enactment of the Sexual Offences Act 2003. The basic problems that were inherent in the previous regime are tackled in the new law and the law has been made more considerate to the victim’s rights. The problem of proving non-consent, which was a major impediment to conviction of rape accused is now ameliorated and consequently attrition in rape cases in likely to go down..

List of Cases

    1. Morgan v DPP, [1976] AC 182
    2. M.C. v Bulgaria, [2003] ECHR 646.
    3. R v R [1991] 2 All English Law Reports 257
    4. X and Y v The Netherlands, 1985] ECHR 4.

Bibliography

    1. Home Office Review of Sex Offences : Setting the Boundaries: Reforming the law on sex offences (Volume 1), (London, Home Office Communication Directorate, 2000).
    2. Westmarland N, ‘Rape Law Reform in England and Wales’, School for Policy Studies Working Paper Series, Number 7.

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