The Law Commission exists for modifying bad laws.
It has recently recommended changes to the DOLS aspect of Mental Capacity legislation following a House of Lords ruling that the DOLS law was “not fit for purpose”, and the “Cheshire ruling” which effectively deemed that people not allowed to leave care settings were not as free as they should be.
My initial statement of fact is that the evidence tells us that Rape legislation is therefore extremely unfit for purpose, to the much more detrimental effect of the public’s freedom, and our societal standing based on how we protect the most vulnerable.
How does 60,000 – 95,000 rape victims every year (Ministry of Justice figures), compare to the few cases of restriction of freedom to leave a hospital or care home?
And to add to that, to get the serious (maximum life sentence) crime comparison accurately, just imagine if there were that many murders and yet we only convicted 2% of the perpetrators…
A fact that is not disputed is that rape is possibly the most under-reported serious crime against the person in this and many other countries. What has been disputed is that, despite the reforms that now include the possibility of male victims being deemed the victims of rape, the law is still flawed in its inception.
The problems that now exist, on top of flaws in the law itself, stem from over-emotional knee jerk responses to the word, and conception of, “rape”, by public and politicians alike.
The central flaw in the law itself is that it is still fundamentally based on “Spoiling of a man’s goods by the use of a penis”. Despite the changes that now allow the inclusion of non-consensual sodomy of a man, failure in reporting the crime is as low in that area as it is amongst women, and with good reason.
In seeking to repeal the law of rape, and proposing instead relying on a law that is entirely based on gradations of sexual assault, I am aware that the majority of people will immediately react emotionally as if what I was advocating was a downgrading of the seriousness of the offence.
Nothing could be further from the truth.
I ask you to picture yourself as a victim – someone who has been attacked, violated.
Abused and injured by someone who overpowered you, they have not just hit you with hands or weapons but fulfilled all the elements of the traditional definition of rape.
I now ask you to assume you have “done the right thing” and gone to the police, despite the overwhelming evidence that suggests this is likely to lead to further trauma and no likelihood of a conviction for your attacker. Let us further assume that you have done this soon enough for forensic evidence to be strong, so that the police decide they have a strong enough case to confidently pursue a prosecution for the most serious offence of rape, with its potential maximum sentence:
Life imprisonment. (As opposed to the 10 years for sexual assault).
Now jump forward through what will be a very traumatic and long period of time, until you finally find yourself in the witness box, frightened by the overpowering aspect of the courtroom, reliving the violent sexual assault you suffered, maybe a year previously.
Your attacker is acting as his own defence lawyer.
He is allowed to question you, and does so. He manages to ask questions allowed by the court that reduce you to an emotional wreck as you relive that experience as narrated by the very attacker. He questions your memory of events in ways that inevitably highlight inconsistencies and absences in your memory. (Research shows that no witness or victim ever remembers all details of even the most traumatic events accurately, a memory process that gets worse with the passage of time).
After your tears and trauma in the witness box you eventually get to hear the verdict of,
This verdict is reached because you and your lawyer could not prove, or even be 100% sure that it was a penis and not a dildo with which this assailant, finally, “raped” you.
The law says: If it wasn’t a penis, it wasn’t rape.
Lawyers will know that the law of burglary is defined by two purposes in the mind of the offender. One is theft following significant entry into a property.
The other is for the purpose of rape.
This reflects the ancient property laws of this land: any woman in the house is traditionally seen as “goods”, albeit a very precious type of goods, and that these special goods may be despoiled by unlawful sexual intercourse with someone other than that woman’s husband. The implication is that if an intruder gets into a house just to beat a woman up, that is, not only not rape but also not burglary either.
Assault by penetration is defined, separately from the law of rape. The Sexual Offences Act outlines that, “Assault by penetration is illegal; this means that it is an offence for a male or female to penetrate the vagina or anus of another person without their consent. Penetration can be by a part of the body, e.g. fingers, or anything else that is not a body part, used for the purpose of penetration (with sexual intent)”. As with all sexual assault cases, this is deemed a lesser offence than rape and the maximum sentence is ten years imprisonment, not life.
Back to you, the victim of a rape – case dismissed, attacker now free to walk the streets, (potential conviction for a lesser offence notwithstanding). You are now feeling, like many thousands before you, that the law is ridiculous. Will others you know who have been raped now refuse to come forward after they hear your story? and would you have minded if the word rape did not feature in the charges knowing it was more likely your attacker was sent to prison?
There are many men as well as women who are not prepared to put themselves through this doubling of the stigma, the traumatic “second rape” of a trial, as it has been described by several victims.
In seeking to change the law I am seeking to enable victims to be placed at the centre of the legal process, in keeping with the modern trend away from supposedly dispassionate cases, solely a matter between perpetrators and the state. Due to the nature of victims mostly being the sole witness, rape cases have never been that.
I am not, here, in the business of disputing the accused’s right to defend themselves in court, (though there is an essential debate to be had on the fairness of process when his questioning constitutes potential intimidation of the victim and sole witness).
I am suggesting that the law of rape, based as it is on ancient chauvinistic property laws, was anachronistic when Queen Elizabeth II came to the throne, yet alone in the 21st century.
The net effect of this anachronism, and the emotional attachment that so badly skews politicians’ and lawyers’ decision making, is that many of the most serious and dangerous perpetrators of sexual assault are going unpunished; that an even greater number of victims are suffering long-term mental health problems, (that can often result in suicide); and that justice is being massively denied to all of them due to the failures of legal action that result from this.
By changing the law to, effectively, scale up the maximum sentence for serious sexual assault to life in prison, and repeal the law of rape altogether, we would be making a stand on behalf of the thousands of victims and increase the likelihood of successful prosecution of the perpetrators by a significant amount. We would also be making an important legal redefinition of women as equals, as opposed to chattels.
Nothing will eliminate the word rape from the public vocabulary, but the job of law is to evolve in such a way as to deal with failings caused by anachronistic attitudes and legislation that is not fit for purpose in the 21st century. The law of rape has been adapted and modified several times, every time with no reference to this issue, every time with little or no subsequent success in preventing perpetrators of extreme sexual assault from escaping rightful conviction. The issue of rape within marriage and existing abusive relationships is also massive – everyone needs to remember that “stranger rape” makes up less than 8% of the total, according to all the best calculations.
I believe the sexual assault laws would still apply, even if these cases are even harder to prove, the difficulty proving does not arise if cases are not brought due to the anachronistic sexist laws of the land.
The obsession with the weapon has to be done away with.
Put yourself back into the position of that trembling and traumatised rape victim – wondering…
“If it was a broken bottle would that have meant the swine was convicted and sent to prison?” Answer: No.
Under my proposed reformed laws – YES –
Life imprisonment would be at the discretion of the judge, based on the aggravated nature of the sexual assault, ensuring that rapists are not only liable to the same maximum penalty as under the current law, but more of them are likely to be prosecuted, and convicted, and more victims are enabled to feel empowered and not stigmatised by the mess of bad law and emotional trauma that is conjured up by that one word, Rape.
(remember Rape crisis centres are available nationwide should you need support following being a victim of any degree of serious sexual assault)