The rape of humans

This Sunday morning, thanks to my empty fridge and bad shopping, I had to venture out for breakfast and came across a fascinating and harrowing article over my cup of coffee. An occupational hazard of working on sexual offences is having to read accounts of fairly harrowing stuff on a regular basis and I do sometimes wonder whether I might become a little jaded by it all. Yet every now and then, something happens to remind me both of the fact that I do care and of why I do what I do.

And my Sunday morning reading was just one of those moments. The article deals with the issue of the ‘rape of men’, and how it affects war-ridden countries and I highly recommend reading it (though you might not want to read it over breakfast, or any meal for that matter). It’s not just the account of what is done to these men that will knot your stomach, but also the account of what happens to them afterwards and how the victims seem condemned to a life of pain, physical, psychological and emotional excruciating pain.

As the article points out, the issue of male rape is a little considered issue, and this is true both in terms of war crimes but also regarding sexual offences in general. The rape of a man was only recognised in English criminal law in 1994, the same year that the courts (finally) held that non-consensual sex between husband and wife was still rape, even if they were married.

The legal formulation stays clear of any gendered approach and relies instead on the physicality of the act. Because rape can be committed by anal penetration, then it can be committed against men. This is one of the many ways the concept of rape has changed drastically over the last century or so. From ‘stranger-rape’ to ‘date-rape’, from vaginal penetration to anal or oral penetration and from female to male victim.

Maybe the next step is a more radical and even more important shift in our understanding of rape. Namely that it isn’t to do with sex or attraction at all. That it is about power, coercion and violence rather than sexual desire, and that it’s that behaviour as imposed on others which needs to be condemned, punished but also better understood.

This does not mean that an act of rape or sexual assault is the same as any act of physical violence, but rather that the sexual element of it is a consequence rather than a cause of the act itself. In the article, we hear from men who are highly traumatised by what happened to them, some even suicidal. The impact of being raped on these men is not just the act itself and the physical repercussions. It’s also how they are treated when they get back home, by their wives, their doctors and society in general.

The violation of one’s intimacy and sexual integrity, followed by a dysfunctional social response is what makes these crimes truly terrible. This is the same whether the victim is male, female or indeed a child, and it is the same if the act takes place in war-torn Africa, a dimly-lit park at night, or in a conjugal bedroom.

And so maybe we should stop fooling ourselves that raping someone is about sex: it’s just another, terrible way to hurt someone, which has incredibly traumatic consequences. And maybe if we do so, then we might realise that the problem here is violence, not sex. And while this will unfortunately not stop all rapes, it might just make things a little easier for the human victims of it…

Home, Reasonable Home?

If I was slightly more cynical, I would almost be tempted to believe that all the fuss and repeated gaffes over the Legal Aid and Sentencing Bill was a way to distract from the massive and dangerous cuts to the legal aid system.

First, the ‘rape might not always be as serious as other types of rape’ non-debate, then the accidental publication of the bill on Tuesday morning, and the expected U-turn on the 50% sentence reduction for early guilty plea. And just in case that wasn’t enough to catch one’s attention and make our collective heads spin, David Cameron then stepped up to provide some distraction, in the popular and populist form of “Grrrr! Look at me I’m tough and not at all soft” posturing. Or, as John Humphrys elegantly put it this morning, “willy-waving”.

(the video link is here – apologies for unwanted and scarring mental images…) 

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Rape Roundup

In the spirit of ‘smartened up debate‘ and before everybody gets sick of talking / reading about it, here are a few points about the non-debate on rape last week and the many issues that were or should have been raised…

Rape is ?

The cause of the whole controversy was Ken Clarke’s comment about what constitutes ‘serious rape’ or ‘rape in the ordinary conversational sense’. This is obviously a very bad choice of words and something the Justice Secretary has rightfully apologised about. After a week of commentators, politicians and journalists worriedly repeating ‘rape is rape’ just in case someone might think they didn’t think that it was, maybe it would be a good idea to remind ourselves what the definition of rape actually is:  

(1) A person (A) commits an offence if—

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

(3) Sections 75 and 76 apply to an offence under this section.

(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life

No ‘jumping from behind a bush’, no ‘victim must be appropriately dressed and reasonably sober’. The only requirements are:

  • A penetration, by a penis, which means that rape can only be committed by a man. Students often perk up at this point and make the ever-incisive comment that ‘what about a man raped by a woman’? What about it indeed? Well, that would be covered by an offence of sexual assault, which is defined in section 3 of the act, though I’m not sure how practically relevant to criminal law a ‘woman on man’ rape really is.
  • The act can be committed against both a man or a woman, and forcing someone to do a blowjob is rape too.
  • There is no consent to the penetration itself. Consenting to dinner / a drink / 10 drinks / a grope / any sexual act does NOT imply consent to the penetration. In fact, even if there was consent to the penetration but consent is withdrawn, everything else should be withdrawn too…
  • Consent is a difficult thing to prove, which is why many rape cases hinge on that particular issue. There are situations where it will be presumed that consent was absent, as was discussed in this blog before.
  • If there is a reasonable belief that there was consent, then it was not rape. The excuse that ‘No means Yes’ will not cut it, it has to be shown that care was taken to find out about consent and that anybody else could have made that mistake.
This is what rape is. However, this is not what Ken Clarke was actually trying to talk about at all…

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Dumbed Down Debating

The real winner of this week’s latest fracas controversy debate on rape is probably the BBC and the producers of BBC Question Time. The programme obviously hit the jackpot when Ken Clarke put his foot in it, two days before the show was to be recorded at Wormwood Scrubs prison. In fact, in these conspiratorial times, it’s enough to make you wonder if Ms Derbyshire wasn’t purposefully trying to trick the Justice Secretary…

In any case, the show made for interesting, if somewhat confusing viewing. Interesting that, to the left of the master of ceremony, Shami Chakrabarti of Liberty was siding with Ken Clarke, while to the right New Labour’s justice tsar Jack Straw was cosying up to Melanie Phillips of the Daily Mail. Funny and confusing days we live in… I mean, how is one supposed to know who to shout at?

After the inevitable re-affirmation of the week’s most popular truism that rape is, indeed, rape, the questions and the answers started getting infuriating moronic interesting. In particular, Ms Phillips’ cry for criminals, and rapists in particular, to serve their ‘whole sentence’ signalled a turn for the worse. Continue reading

Are you ready for your close up?

As of this morning, the UK Supreme Court’s proceedings are broadcast live by Sky news.

If you don’t have cable or indeed if you don’t have the possibility of sitting in front of your TV during work, it can also be found online.

A few months after the decision to let twitter in the court room, it is another development in the new supreme court’s intention to make justice more visible and transparent, and it also doubles up as a great potential education tool.

In my experience, even students who have a made a conscious decision to study law often have little idea of what justice actually entails in practice. While the Supreme Court is a small and exceptional part of this justice process, it’s clearly a step in the right direction.

It will also be interesting to see whether the cameras have any influence on the judges’ and lawyers’ style… In the meantime, if your idea of fun television is not a legal discussion regarding the value of assets according to section 83(2)(b) Finance Act 1989, you might want to stick to Judge Judy…


Who knows, maybe the lace collar will catch on?

A Striking Balance

An interesting interview in the Guardian yesterday with Keir Starmer, head of the Crown Prosecution Service and therefore in charge of who gets tried for what crime in England and Wales. He talks in particular about the guidance that the CPS has issued as part of a consultation on whether a woman who retracts a claim of rape should be charged with perverting the course of justice when there is a history of abuse with the accused.

A broad enough measure of compassion?

image courtesy of Joe Gratz, via flickr.com

This consultation (which is open until May 6) was prompted by a case a few months ago where a young mother was jailed for a few months after she was found guilty of perverting the course of justice. She had accused her husband of rape, only to withdraw her claim later. This ‘false retraction’ had led to her being sentenced to prison, despite the fact that the court accepted she had suffered abuse at the hand of her husband and had withdrawn her claim because of pressure from him.

Although the court of appeal ‘freed’ her, it did not quash her conviction. This means that she is still guilty of a criminal offence of ‘perverting the course of justice’, but that her sentence was reduced to a community sentence with a two year supervision order instead. As the aptly named Lord Judge put it, the court should have showed a “broad measure of compassion” for a woman who had already been “victimised”…

While the result is undoubtedly just, one can’t help but wonder whether it is just enough, as she is still held to be a criminal for giving in to the pressure of her abusive husband.

Only false accusations to be prosecuted

Mr Starmer’s reaction to the case was to announce that all similar cases of rape retractions in situations of domestic violence would be reviewed by him personally. But he thankfully didn’t stop there and the CPS has now produced a consultation about its interim guidance on such cases…

The most striking characteristic of this guidance is that women who falsely withdraw claims of rape will now only be prosecuted if the initial claim was false or malicious and not if the allegation was true but withdrawn for personal reasons. This position is reinforced by the instruction that to prosecute someone for falsely retracting rape claims will therefore only be acceptable if it can be proved, to the criminal standard of proof (ie beyond reasonable doubt), that it was falsely made in the first place.

This means in practice that women who have claimed that their partner has raped them but later withdrawn a claim, whether because of the abusive nature of the relationship or for other personal reasons, will not be prosecuted and held criminally responsible. If there is enough evidence to show the accusation of rape was false in the first place, then the CPS will consider whether it is in the public interest to bring that person to justice. This will not always be the case: in a recent case where a 14 year-old girl wrongly accused a 14 year-old boy of having raped her, it was found that a trial would not be in the public interest and all charges were stopped.

Balancing Act…

image courtesy of Bryan Gosline via flickr.com

This test strikes a much better balance regarding the responsibility of women who withdraw rape claims. By allowing the conviction to stand, the Court of Appeal’s decision means that a woman was made a criminal for giving in to the pressures of an abusive partner. This would make women in her situation partly responsible for the abuse she receives, a position which is untenable and unfair. By stating clearly that such women are not committing any criminal wrong but rather are still to be protected by the criminal justice system, the CPS shows that its commitment to fighting domestic violence isn’t all talk and no show…

Criminal Cover-up

Since Monday morning, I’ve been wanting to write a post about the French burqa ban. It’s not even that I’ve been putting it off because I was enjoying the last rays of sunshine, or busy trying to write an actual chapter for my PhD, or even that I was in bed with a bad cold. It’s just that I couldn’t find how to write it. I couldn’t think of what I would start with and which words would convey my dismay and sadness at this opportunistic and un-thought-through piece of legislation…

And then I realised that, as a lawyer, these were the exact words I needed: that of the actual law. So I went looking and found the new website dedicated to the ban (what’s next? a facebook fan page?), setting out the new rules and their inspiration. And guess what? They turned out to be just as depressingly inspiring as I’d hoped they would be…

What ?

The law, voted on the 11 October 2010 and that came into force last Monday, doesn’t actually expressly ban the burqa or even the niqab. In fact, it states that “no-one can, in the public space, wear an outfit designed to hide ones face.” The website (and the downloadable flyers, in case you fancy printing some out for yourself…) helpfully explains that this means “outfits which prevent identification. The face need not be totally hidden, for example a piece of cloth which hides the face but the eyes is also forbidden”. But, before you think they are targeting anyone in particular, this can include but isn’t limited to: “balaclavas, integral veils (burqa, niqab), masks and any other accessories or items of clothing which, whether on their own or associated with other items, hide the face.” Continue reading

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