Archaic, incoherent and discriminatory are amongst the various words used to describe the previous laws on sexual offences. In need of an amendment to reflect changes in society and societal attitudes, these inconsistent provisions were updated by the Sexual Offences Act 2003. One of the most controversial changes was the introduction of a statutory definition of consent to bring coherence and clarity to the law. Despite a positive change, this article outlines some of the problems that still remain. A change in social attitudes surrounding gender inequality needs to occur before any further reform will become effective.
The mens rea (guilty mind) requires intention, and either actual knowledge or lack of reasonable belief of non-consent from the victim. The problems occur when intention is unclear due to the inherent “he said, she said” nature of the crime, which makes it harder to establish whether reasonable belief of consent was present, and where the complainant’s capacity to make informed consent is unclear. Prior to the reform, the requirement was that a defendant had honestly, rather than reasonably, believed there was consent. It can be argued that the movement towards an objective test of reasonable belief was one in the right direction.
Since the replacement of the notion of the “reasonable man” with the “reasonable person” (Toward a Feminist Theory of The State (HUP 1989) 183), feminists, such as MacKinnon, have argued that in practice this term is still gendered to the ground. You cannot eradicate such a gendered standard by superficially replacing “man” with “person”. Instead, they argue that the law should apply a “reasonable woman” test to determine whether a woman had consented to sexual contact, because this would consider the differences between the minds of each gender. However, it would allow the issue of gender inequality to prevail and create inconsistencies with other areas of law that use the “reasonable person” objective test.
The main problem with this surrounds the idea of whether factual consent should equal legal consent. Following the definition of consent under section 74, the current legal position is that if a complainant has temporarily lost her capacity to choose whether to have intercourse, due to drink, then she would not be consenting and subject to the defendant’s state of mind, this would be considered as rape. If that same complainant had remained capable of making that choice, and in drink agreed to intercourse, then this would not be rape as a drunken consent is still consent. Therefore, even if factually she seemed incapable of making an informed decision, legally she would have been held to have consented. These difficulties are made even more prominent due to the influence of rape myths and stereotypes on the jury and legal professionals. This is seen through the culture of victim blaming, where the complainant is said to have been “asking for it”. For example, 30% of people consider that a woman is responsible for being raped if she was drunk at the time of the relevant act – a common rape myth. However, if a victim of burglary had left their door unlocked whilst intoxicated we would not place the blame of the offence on them. Whilst I believe that such attitudes prevail within society and the courtroom, the culpability remains shifted upon the victim rather than the defendant, and the likely outcome of the case remains intoxicated with such myths and stereotypes.
Due to broader social and cultural attitudes, it is often viewed that “prostitutes cannot be raped” because they are always consenting to sexual activity. This wide-spread view is a problem for female rape victims because it provides an excuse for the abuse of sex workers, and encourages the view that a prostitute cannot have the same rights in regards to consent as any other victim. In reality, a prostitute negotiates with her clients what exactly she will be consenting to, and thus does not consent to be raped. Prostitutes are still human beings and deserve to be protected by the law, like all other rape victims.
However, due to the stigma that society has placed upon such work, and the prevalence of rape myths, sex workers are more likely than other women to not report a sexual assault to the police due to the fear of not being taken seriously, or being charged with other offences. Similarly, this affects previous sex workers, as they are also seen to lack credibility as complainants. It can be argued that there has been a change in the right direction as past sexual history can no longer be used to undermine the credibility of a complainant. However, in practice, negative cultural attitudes towards prostitutes still remain and the myth that they cannot be raped prevails.
A similar trend can be seen where victims of rape work within the pornography industry. This is a problem for adult entertainers who are raped because they are subject to the influence of rape myths, and as a result are less likely to be seen as credible complainants. Similarly to prostitution, it is often stated that “adult entertainers cannot be raped” because such a violation to your person is “part of the job”. For example, they often agree to participate in activities, even if it is against their wishes, due to the fear of losing their job or harming their reputation.
The main social attitude that needs to change is that which promotes gender inequality. For example, those who subscribe to traditional gender role beliefs show greater acceptance of rape myths and adopt narrower definitions of what constitutes rape than those who do not (Jennifer Temkin, Sexual Assault and the Justice Gap: A Question of Attitude (Hart: Oxford 2008)). This is a problem for female rape victims as it deters them from reporting the offence committed against them. To achieve change we could simply get rid of the gendered term rape, which is a term that carries stereotypes.
We could also remove categories of sexual offences to instead think about appropriate levels of sexual behaviour. This would mean that men and women would be able to be both perpetrators and victims of such a crime. This is seen to be successful in most Australian jurisdictions where penetration with any body part or object is included in the definition of sexual intercourse on that basis that it is “just as frightening, humiliating, invasive and injurious” (Anna Carline and Patricia Easteal, ‘Shades of Grey – Domestic and Sexual Violence Against Women’ (2014 Routledge), 156).
Although the Sexual Offences Act has brought some movement in the right direction on paper, this article has briefly touched on the problems that still exist in practice due to the impacts of gender inequality in society. Therefore, the Act cannot alone bring an end to the problems faced by female victims within the justice system. An effective system will promote fairness, equality and justice but, whilst the impacts of broader social attitudes towards rape and women continue to intoxicate the system, these qualities will never prevail.