Rape is one of the most heinous
crimes. On conviction, it rightly attracts a maximum sentence of life
imprisonment. Those who are convicted should be locked up for a long time. But
when I read Natasha Walters’ piece in today’s Guardian,
my mind went back to the very first rape case I defended.
In 1979, Archbold Criminal Law and Practice, the criminal
lawyer’s bible, contained only a few paragraphs on the offence of rape. The
definition was there. The law was set out
in the Sexual Offences Act 1956, the statutory definition of rape was “any act of non-consensual intercourse by a man with a
person; the victim could be either male or female. Consent was given its
ordinary meaning, and lack of consent could be inferred from the surrounding
circumstances, such as submission through fear. It was a defence if the accused believed that the victim was
consenting, even if this belief was unreasonable, and this was a matter of fact
for the jury.
The police looked for corroborative evidence to
support the complainant’s account. This was usually medical or other forensic
evidence, or an admission from the accused. Juries had few problems with the
law. Conviction rates were high.
Since 1980, the rules have gradually changed. The corroboration requirement has all but
vanished. The concept of consent has undergone numerous changes. In many
circumstances, the victim is presumed not to consent.
The accused’s right to cross–examine the complainant,
whose
anonymity is protected, about her sexual
history has virtually disappeared. Husbands can now rape their wives.
Complaints of rape have soared. Attacks by strangers have decreased to be
replaced by those against lovers and casual partners. In 2004 The Home Office concluded that one in twenty women
between 16 and 59 had been raped. This is an astonishing figure.
And Natasha is flying yet another “improvement” in the law. Difficult cases always make bad law. A couple of weeks ago a Crown Court judge halted a rape case and ordered the jury to return a not-guilty verdict because he told them that “drunken consent was still consent”. I think he was wrong. But that’s no reason for Mike O’Brien, the Solicitor- General, to look into the “possibility of clarifying the law” in the light of that case. The problem with drunken consent is not the consent bit, but the drunken bit. What dear Natasha forgets is that the jury will know that the complainant was drunk. And I have no doubt that they will be told just how drunk. And it’s inevitable that the alleged victim’s evidence would be seen by the jury through that prism
In far too many rape cases the only question
for the jury is this; “ do you believe the alleged victim or the accused”. They
are often presented with little or no extrinsic evidence. I’m afraid if the
Home Office tinkers around with the definition of consent again, then
juries will presented with even more difficulties.
Back to my
1979 case. It involved a young man who picked up a girl in a local pub. He
drove her to a local beauty spot where they had sex. No date rape; there was
evidence corroborating the claim that violence was used, and there were
injuries on the accused that were likely to have been caused by the girl’s
struggles. The jury took no time to convict my client. He was sent to prison for five years.
There have
been many welcome improvements in the investigation and the prosecution of rape
cases since 1980. But still far too many are brought by the CPS on a wing and a prayer.
They hope the jury will believe the complainant. After all, why should she be
fibbing? This is not the basis of sound
case.
One of the
improvements is not mentioned by m/s Walters. It is proposed that the
prosecution will be able to interview their witnesses. This one procedural change
will make more difference to the terrible attrition rate of rape cases from
arrest to trial than all the years of tinkering with the law!
