Monthly Archives: July 2014

The fault requirement of rape

Please note that this post will discuss the law of rape and sexual assault, though in non-graphic terms.

The 1970s are looking more and more like a decade-long molestation racket, a time when anyone with name recognition and a penis could get away with the most appalling crimes against the bodily autonomy of others, especially girls and young women. The Operation Yewtree steamroller rumbles along, prompting endless lurid speculation about whose will be the next famous face to be seen in the back of a police car. Yet the media’s fascination with this hideous rogues’ gallery of children’s TV presenters and DJs has precluded a serious discussion about the law of rape and sexual assault (formerly indecent assault), and has cast the wider perception of these crimes into sharper relief than ever.

It is important to address possibly the most dangerous misconception about the process of a trial for rape, and that is as follows: a not guilty verdict is not the same as a false accusation. There is a simple reason for this, and it is not that the court system is routinely letting offenders off (though that is possible, it overcomplicates the issue and does the courts an undeserved disservice). Simply put, rape is a complex crime. For the purposes of this analysis I will be using the definition of rape and sexual assault contained within the UK’s Sexual Offences Act 2003, ss1-4 – although many thoughtful people have argued that the current definition is deficient, I respectfully disagree with them and note that it is irrelevant to the points I am trying to make anyway.

There are three aspects of the crime of rape or sexual assault:

  1. There is sexual contact;
  2. To which the victim (V) does not consent;
  3. Where the defendant (D) does not reasonably believe that V consents.

If any of those three elements are missing, D is not guilty of rape or sexual assault; accordingly, when V complains that she has been the victim of sexual contact to which she does not consent, the prosecutor must prove beyond reasonable doubt that a) V indeed did not consent to the sexual contact in question and b) that D did not have the requisite reasonable belief in consent.

What tends to happen in trials is that Element 1, the sexual contact, is rarely at issue – both the complainant and the defendant usually concur on the existence of the disputed sexual intercourse. The trial tends to come down to Elements 2 and 3, and it is at that point that much of the public discussion of rape begins to break down.

Much of the current discussion of rape centres on Element 2. That is why we have campaigns about victim-blaming, about how a short skirt doesn’t imply consent, and so on. This focus, however laudable it is (especially for defending barristers who know every trick in the book to pull consent out of a hat for a receptive jury), runs the risk of blinding us to Element 3, and thereby distorting our view of the crime of rape.

Elements 1 and 2 concern what lawyers call the actus reus, or “guilty act” – the actual illegal act in question. But Element 3 is just as vital, and that is the mens rea: the “guilty mind” or fault element. In a nutshell, this means that not only did D perform the act of which he is accused, but he did so with sufficient culpability to be held guilty in law of the crime of rape.

This is a very important distinction. To illustrate why it follows that a not guilty verdict is not the same as calling the victim a liar, here is an example scenario. Let us suppose that Alex and Brenda engage in sexual intercourse to which Brenda does not consent. Let us suppose further that Brenda makes a complaint, and pursues the trial to its end, where it is found that Alex did indeed possess a reasonable belief in consent (which he really did). What occurs in this example is that Brenda makes a genuine accusation of rape of which Alex is not guilty. It is entirely possible, at least within the framework of English law, for a genuine experience of non-consensual sex to not satisfy the fault requirements for the accused to be guilty of the mental element of rape. To put it another way: “I was raped by X” is not the same thing as “X raped me”. The former implies being on the receiving end of intercourse to which the victim does not consent; the latter demands that X actually fulfils the requirements in law to be what we would call a rapist.

What ought to be debated is how the courts should consider that reasonable belief to be satisfied. Some of the more interesting discussion concerns how the law should treat silence or ambiguity, and whether there should be an explicit requirement for affirmative expressions of consent. I fear this would be unworkable, much like its cousin “enthusiastic consent” – a fine thing to aim for, but difficult if not impossible to enforce and draft in law.

This has been a deliberately narrow post, because the legal policy surrounding rape and sexual assault raises a great many questions which deserve a full and frank debate in public by more people than just me. The crucial thing to remember is that rape, as defined in English law, is not only a question of whether the contact occurred, and whether or not the victim consented, but of whether or not the defendant is truly guilty in a more robust sense than simply performing the act. It would surely be unjust to convict people for a reasonable error of judgment – what matters for future policy on this single, narrow issue is how we define “reasonable”, and what we ought to demand of the defendant in his own determination of consent in situations of apparent ambiguity.


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