Rape on trial
We think we know what rape is but do we? The legal definition of it has been adapting over time and the greatest legal strides have been made in the last 42 years, writes Natalie Smith.
Daphne Morgan was asleep in her home in Wolverhampton, sharing a bed with her 11-year-old son when she was dragged into another room and raped by three men. Her husband had let them in. In fact he had invited them to their home, informed them she might struggle but that she liked it because she was kinky. Her two children had been woken by her screams. When her ordeal was over, she drove to the local hospital and set in place a chain of reactions that brought about a huge change in the law.
It was 1973 and the three men who raped her stood trial. Her husband faced prosecution for aiding and abetting the offence but not for rape because a husband in law could not be guilty even though on that terrible night he too had raped her. All four men were found guilty, her husband received a sentence of 10 years imprisonment and the others four years.
The facts of the case were such that it was clear Mrs Morgan had not consented to the terrible events she was subjected to but the case was appealed by the defendants to the Court of Appeal and subsequently wen to the House of Lords. They argued that when the judge directed the jury on the law he had been wrong. The judge told the jury that when considering if the defendants had honestly believed Mrs Morgan consented they were to consider if that belief was reasonable for them to think she had. The lawyers argued that reasonableness of the defendant’s belief was not necessary, if the perpetrators had honestly believed she had consented they should be acquitted whether it was reasonable for them to hold that belief or not. This wasn’t just a case of defendants’ doing all they could to overturn their convictions. There was also a legitimate legal issue to resolve and the question had to be answered by the House of Lords.
In the 1970s, rape as it still does now, raised difficulties, more so than many criminal offences. The case of Morgan, was of great concern to the public and politicians, so much so a parliamentary advisory group was set up to assist the government of the day to work out what to do about it. The group’s main issue of concern was that although it was a criminal offence under the 1956 Sexual Offences Act for a man to rape a woman, there was actually no statutory definition of what rape was.
In 1975 there was no statutory definition of what consent was in legislation. The law relied upon a common law definition of rape that dated back to the 17th century when rape was considered unlawful sexual intercourse with a woman without her consent, by force, fear or fraud. Force was the primary focus for most people and the assumption was that there had to be a struggle, a woman had to show signs of injury or had to resist for the crime to be committed. The feeling of the advisory group was that the focus had to be drawn back to the essence of the crime which was having sexual intercourse without consent.
The advisory group, led by one of our most prestigious lawyers of our age, Rose Heilbron (see here) set out with incisive accuracy the problems with the offence of rape as they saw it:
It involves an act – sexual intercourse – not in itself either criminal or unlawful and can, indeed, be both desirable and pleasurable. Whether it is a criminal depends on the complex considerations, since the mental states of both parties and the influence of each upon the other as well as their physical interaction have to be considered and are sometimes difficult to interpret… there can be many ambiguous situations in sexual relationships… however precisely the law may be stated, it cannot always adequately resolve these problems. In the first place, there may well be circumstances where each party interprets the situation differently and it may be quite impossible to determine with any confidence which interpretation is right. Although in a criminal case it is the accused who is on trial, there is a risk that a rape case may become, in effect, a trial of the alleged victim… .Whatever the outcome, the very fact of having been involved is liable, at present, to have embarrassing or even damaging consequences for the women.
The parliamentary group recommended that rape be defined.
A year later the 1976 Sexual Offences (Amendment) Act came into force and England and Wales finally legally defined in statute one of the oldest offences. The statute said that a man commits rape if he has unlawful sexual intercourse with a woman who at the time did not consent and he knew that she did not consent or was reckless as to whether she consented. Reasonableness did not form part of the definition. The advisory group said they did not think it tenable that a man was judged not by himself but by the standards of the hypothetical reasonable man.
Many of the other concerns at the time were left as they were. The fact that Mr Morgan did not stand trial for rape was not addressed, as the concept of rape in marriage was still not accepted by the law. Nine year later in 1984 Parliament once again asked for assistance and the advisory group concluded that the extension of rape prosecutions should be extended if a man has non-consensual sexual intercourse with his wife when they are no longer cohabiting. The committee was divided as to whether it should extend to all cases of non-consensual sexual intercourse within marriage. The logic in 1984, a time when the UK had already had a female prime minister for five years, was that sexual intercourse within marriage was not unlawful and there were ‘grave practical consequences… once placed before the police they are under a duty to investigate and the intervention of the police might well be to drive couples further apart’.
In 1991 husbands could finally face prosecution for the rape of their wives. In 1994, it was accepted that rape could be committed against men. Then in 2003 rape was redefined once again, in gender neutral language, the lawmakers’ defined rape to be when a person’s mouth, anus or vagina is penetrated with a penis, that the person does not consent to the penetration and that the person committing the act does not reasonably believe that person consented. What is considered reasonable is to be determined having regard to all the circumstances, including steps taken to ascertain consent.
Finally, the ghosts of Morgan were put to rest.
The concept of rape that we have today has been carved only in recent times and it might yet be redefined over the coming years. Ideas of rape only being committed by force still persist for many. Judges give directions to juries today warning them about unwarranted assumptions that lack of threat of force, struggle or injury indicate consent. They are to be warned of the distinction between proper legal consent and submission to the offence.
I don’t know what happened to Daphne Morgan or those who were convicted.
She saw the sentences of the perpetrators reduced by the Court of Appeal to only three years, sentences that would be considered lenient by today’s sentencing practices.
In 1973 she was publicly named. That would never happen today. The parliamentary advisory group set up in 1975 made other recommendations including that complainants in sexual offences cases should have anonymity. It took a few years to fully implement but those who make criminal complaints of sexual offences today are afforded complete anonymity by the court. Anyone who does publish details that could lead to their identification will be prosecuted. The advisory group in 1975 also criticised the procedure of rape trials, feeling that some restriction on the questioning of the complainants regarding their sexual history was needed unless agreed by the Judge.
That is now the position. The advisory group did make clear that their criticism lay at the practice and procedure which often meant that rape victims lived the ordeal over again through the court process. However, they underlined that from time to time false allegations are made for a variety of motives and so all relevant and proper cross examinations must be permitted to ensure a fair trial.
The 1975 committee, made one further recommendation that there should be balance of the sexes on those juries that consider rape trials. One of their recommendations was there be a minimum of four women for rape trials, to date that has not been enacted.
It’s very important to understand the legal history and evolution of the law of sexual offences, not just to see how far we’ve come in a relatively short time but in criminal law the courts are now regularly trying historic sexual offences cases, and juries have to apply this old law once again.
First published on June 22, 2018