New paper calls for reframing of rape offence
“All is not well with the law on rape,” argue two researchers in a new article calling for an updated definition of the offence as sexual penetration without reasonable belief in the other’s consent.
Jonathan Herring, Professor of Law at Oxford University, and co-author Dr Sorcha McCormack of Leeds Beckett University write in Gender and Justice that rape trials should focus on whether a defendant had reasonable belief in “rich, full” consent, rather than whether the victim consented. Currently, the prosecution must prove beyond reasonable doubt that the victim did not consent to the act – a “vague and ill-defined” principle that juries often struggle with.
Professor Herring and Dr McCormack say their proposed reframing would have implications including, by placing the spotlight on the defendant, lessening the burden on the victim in rape trials. “Pernicious lines of questioning,” they write, such as those which focus on what the victim was wearing or their prior sexual history, would be limited by the new definition. It would also move the law to a model in which sexual penetration is seen as a “prima facie wrong” that can be justified by rich consent.
Describing their proposal as potentially “controversial” given the framing of sexual penetration as a default legal wrong, the authors argue that retaining the current definition of rape is nonetheless difficult to justify in light of damning statistics. Figures provided by Rape Crisis show that in England and Wales only one in six women report their rape to the police – and of those who do report it, in only 2.6% of cases are prosecutions brought. Additionally, rape trials are widely thought to be more effective at retraumatising victims than producing justice, with the law as it stands failing to send a clear societal message about the regulation of sexual behaviour.
The 22-year-old definition of the rape offence is therefore “in desperate need of reform”, say Professor Herring and Dr McCormack, and should be revised alongside the introduction of other beneficial measures such as specialist rape courts, improved police practice, and greater efforts to combat rape culture in society.
Professor Herring says: “Rape trials are currently often traumatic for victims, with it seeming as though the victim is the one on trial. But by focusing on whether the defendant had reasonable grounds for believing they had consent, rather than whether the victim in fact consented, we can place the spotlight where it should be: on the defendant.”