The beginning of the twenty-first Century has seen a major inspection and repair of the sexual offenses statute law in England and Wales. Prior to this reform the jurisprudence on sexual offenses was based on statute law implemented in 1956 [ 2 ] , with some parts dating as far back as the nineteenth Century. It goes without stating that this statute law was grossly dated and unsuitable for the twenty-first Century. A figure of of import amendments had been made since the 1956 statute law, including the inclusion of matrimonial colza and male colza in 1994 [ 3 ] . However, these bit-by-bit alterations resulted in really confusing Torahs, to the extent that many different Acts had to be accessed in order to decode where the jurisprudence stood on any given affair. The Home Office acknowledged that this had led to a ‘patchwork comforter of commissariats ‘ ( Home Office, 2000, pg. three ) . The old jurisprudence was besides plagued by anomalousnesss, inappropriate linguistic communication [ 4 ] and favoritism, some of which may hold been construed as go againsting human rights statute law.
Get downing with a pledge by the freshly elected 1997 Labour authorities to assist victims of sexual offenses obtain justness, a elaborate and drawn-out reappraisal procedure was initiated in 1999 ( the Sexual Offences Review ) . This was followed by a Sexual Offences Bill and so, eventually, the reaching of the Sexual Offences Act 2003, which came into force in May 2004. This article outlines the unfavorable judgment women’s rightists have antecedently made about colza jurisprudence in England and Wales and describes and evaluates every bit far as possible the new statute law as it relates to ravish.
2. The abrasion job
The unfavorable judgments feminist faculty members and militants have highlighted in footings of colza jurisprudence in England and Wales are similar to those described in other states with adversarial legal systems. These include: the troubles in turn outing non-consent ; cross-examination ; colza myths ; the usage of sexual history grounds in tribunal ; and the 1976 opinion in Morgan [ 5 ] that an ‘mistaken ‘ but ‘honest ‘ belief in consent should take to an acquittal even if this belief in consent is non a ‘reasonable ‘ 1. The improbably high abrasion rate for colza instances has been a major concern underpinning many of these unfavorable judgments and acted as a strong push factor towards the strengthening of the jurisprudence on sexual offenses. Quite merely, most colza victims who report the offense to the constabulary will ne’er even see their instance make tribunal, ne’er head see the culprit convicted for colza.
Many surveies have documented the high abrasion rate and how it has increased over clip. While more and more work forces are being reported to the constabulary for colza, the proportion that are convicted for colza has been steadily falling since records began ( Smith, 1989 ; Chambers and Miller, 1983 ; Lees and Gregory, 1993 ; Harris and Grace, 1999 ; HMCPSI and HMIC, 2002 ; Lea, Lanvers and Shaw, 2003 ) . These surveies show that the ratio of colza strong beliefs to reported colzas has steadily fallen from one in three in 1977 to one in 20 in 2002 ( Kelly, 2004 ) . Comparative analysis has found that the high colza abrasion rate is non confined to England and Wales but is echoed to different extents across Europe ( Kelly and Regan, 2001 ) . Bearing in head that most colzas are non even reported to the constabulary [ 6 ] , this of merely one in 20 is peculiarly refering and has been the footing of much candidacy by militant groups. Furthermore, Kelly ( 2002 ) warns that abrasion may really be even higher than research has found because such surveies do non take into history colzas that are reported to but non recorded by the constabulary, or any strong beliefs that are overturned on entreaty. New research has found that around one in 10 convicted rapers subsequently have their strong beliefs overturned or sentence reduced on entreaty ( Cook, 2004 ) .
3. The reform procedure
The Sex Offences Review began in 1999 and aimed to accomplish ‘protection, equity and justness ‘ within the Home Office ‘s overall purpose of making a ‘safe, merely and tolerant society ‘ ( Home Office, 2000b ) [ 7 ] . The reappraisal ‘s footings of mention were:
‘To reexamine the sex offenses in the common and codified jurisprudence of England and Wales, and do recommendations that will:
· supply coherent and clear sex offenses which protect persons, particularly kids and the more vulnerable, from maltreatment and development ;
· enable maltreaters to be suitably punished ; and
· be just and non-discriminatory in conformity with the ECHR and Human Rights Act. ‘
This 3rd point is likely to hold been an of import factor in why the Government felt the pressing demand for legislative reform ; in October 2000 the Human Rights Act 1998 came into force and thereby incorporated the rights guaranteed by the European Convention of Human Rights ( ECHR ) into the domestic jurisprudence of England and Wales. Although the Human Rights Act 1998 did non really give citizens any ‘new ‘ rights it gave Judgess the power to do a statement of mutual exclusiveness if a piece of statute law failed to esteem an person ‘s human rights. Furthermore, the European Court of Human Rights has in the past held provinces accountable for misdemeanors of human rights where they failed to ordain appropriate colza statute law [ 8 ] .
An internal guidance group and external mention group were set up as portion of the reappraisal ; the latter including established feminist faculty members [ 9 ] , representatives from feminist organisations working with victims of colza [ 10 ] and women’s rightists runing for colza jurisprudence reform [ 11 ] . Intentionally or accidentally, the reappraisal was hence guided by a strong feminist influence.
Two drawn-out paperss were so produced, dwelling of literature reappraisals, studies from audience seminars and recommendations ( Home Office 2000a, 2000b ) and from this reappraisal, the white paper ‘Protecting the Public ‘ was published ( Home Office, 2002 ) puting out the Government ‘s proposals. In the preface by Home Secretary David Blunkett, he described the bing jurisprudence on sexual offenses utilizing words such as ‘archaic ‘ , ‘incoherent ‘ and ‘discriminatory ‘ .
The Sexual Offences Bill was introduced in January 2003 into the House of Lords, where some amendments were made. The Bill was passed to the House of Commons in June 2003 where it was reviewed by a Home Affairs Committee. In July 2003 this reappraisal was published, along with unwritten and written grounds submitted as portion of an enquiry into specific subdivisions of the Bill ( House of Commons Home Affairs Committee, 2003 ) . The Sexual Offences Bill was given Royal Assent on the twentieth November 2003 and became the Sexual Offences Act 2003 with consequence from May 2004. This replaced the Sexual Offences Act 1956 and its assorted amendments. It is widely acknowledged that the new Act represents the largest inspection and repair of sexual offenses in over a century ( Editorial, Criminal Law Review, 2003 ) .
4. The Sexual Offences Act 2004
In order to procure a strong belief for colza it is necessary to turn out beyond sensible uncertainty non merely that the suspect committed an act that meets the legal definition of colza but besides that the suspect knew that the victim was non accepting. These are known as the actus reus ( the guilty act ) and the work forces rea ( the guilty head, or condemnable purpose ) . These two facets of colza are now described in bend in footings of the reforms that have taken topographic point.
4.1 The actus reus ( guilty act )
The actus reus of colza within the Sexual Offences Act 1956 was merely defined as improper sexual intercourse with a adult female, which was amended in 1976 [ 12 ] to improper sexual intercourse with a adult female without her consent. The 1990s saw two major alterations associating to the actus reus of colza. In 1991, after over 100 old ages of feminist candidacy colza within matrimony became illegal within the common jurisprudence system and this was placed into legislative act in the Criminal Justice and Public Order Act 1994 when the word ‘unlawful ‘ was removed from the definition. It had antecedently been judged in common jurisprudence that married adult females had no capableness or authorization to ‘not consent ‘ :
‘The sexual communicating between them is by virtuousness of the irrevokable privilege conferred one time for all on the hubby at the clip of the matrimony … ‘ ( R V Clarence, 1888 ) .
‘But the hubby can non be guilty of colza committed by himself upon his lawful married woman, for their marital consent and contract the married woman hath given up herself in this sort unto her hubby, which she can non abjure. ‘ ( Sir Matthew Hale, 1736 History of the Pleas of the Crown )
The criminalization of matrimonial colza was controversial within legal circles. This is because when it was criminalized in 1991 it was seen as being criminalized by judge-made jurisprudence instead than the elective authorities. The instance in inquiry was R V R [ 13 ] where it was alleged a hubby had attempted to hold sexual intercourse with his alienated married woman without her consent and physically assaulted her by squashing her cervix with both custodies. In this instance the issue was non whether he had attempted to coerce his married woman to hold sexual intercourse without her consent, but instead whether this fell under the legal definition of ‘unlawful ‘ sexual intercourse. Trusting upon Hale ‘s now ill-famed statement ( cited above ) the defense mechanism argued that because the Acts of the Apostless were against his married woman this could non be classed as improper.
In sing this defense mechanism, Mr Justice Owen argued that Hale ‘s statement could non longer be seen as valid because it was ‘a statement made in general footings at a clip when matrimony was indissolvable ‘ . However, this dismissal of Hale appeared to associate more to the fact that there was physical force used in the attempted colza than the deficiency of consent per Se:
‘I am asked to accept that there is a given or an implied consent by the married woman to sexual intercourse with her hubby ; with that, I do non happen it hard to hold. However, I find it difficult to believe … that it was of all time the common jurisprudence that a hubby was in consequence entitled to crush his married woman into entry to sexual intercourse … If it was, it is a really sad commentary on the jurisprudence and a really sad commentary on the Judgess in whose chests the jurisprudence is said to shack. However, I will however accept that there is such an inexplicit consent as to sexual intercourse which requires my consideration as to whether this accused may be convicted for colza. ‘
Mr Justice Owen ruled that the act could be classed as attempted colza and sentenced the suspect to three old ages imprisonment. The suspect appealed, reasoning that Mr Justice Owen had been incorrect to govern that colza within matrimony was against the jurisprudence when the matrimony had non been revoked.
The entreaty was dismissed nem con at the Court of Appeal [ 14 ] , where Lord Lane dismissed Sir Matthew Hale ‘s statement as being a ‘statement of the common jurisprudence at that era ‘ , where ‘the common jurisprudence regulation no longer remotely represents what is the true place of a married woman in contemporary society ‘ . The Court of Appeal concluded:
‘We take the position that the clip has now arrived when the jurisprudence should declare a raper a raper topic to the condemnable jurisprudence, irrespective of his relationship with his victim. ‘
This opinion was subsequently upheld on entreaty to the House of Lords [ 15 ] and at the European Court of Human Rights [ 16 ] .
The second of the two antecedently mentioned alterations was besides made within the 1994 Act when it was acknowledged that a adult male could be a victim of colza and the actus reus of colza was amended to cover vaginal or anal intercourse against a adult female or another adult male without their consent. Although other parts of the Sexual Offences Act 1956 were revised between 1995 and 2003, the actus reus of colza retained its definition as in the Criminal Justice and Public Order Act 1994 until the new definition in the Sexual Offences Act 2003.
The Sexual Offences Act 2003 defines the actus reus of colza as penial incursion of the vagina, anus or oral cavity of another individual without their consent. Therefore, in footings of its actus reus, colza has easy changed over about half a century from improper sexual intercourse with a adult female to penile incursion of the vagina, anus or oral cavity of another individual without their consent. The broadening of the actus reus to include penial incursion of the oral cavity is based on statements made in the Sexual Offences Review that other signifiers of incursion ( for illustration: penial incursion of the oral cavity, or vaginal or anal incursion with an object or another portion of the organic structure ) should be treated merely every bit earnestly as penial incursion of the vagina or anus. It was decided that colza should be extended to include penial incursion of the oral cavity, on the footing that ‘… forced unwritten sex is as atrocious, as demeaning and every bit traumatising as other signifiers of penial incursion ‘ ( Home Office, 2000a, pg. 15 ) [ 17 ] . This means that it remains a gender-specific offense with respect to the culprit ( i.e. the act requires a phallus ) but a gender-neutral offense with respect to the victim. A new offense of assault by incursion was introduced to cover incursion by objects other than a phallus, as with colza transporting the maximal sentence of life imprisonment [ 18 ] .
The 2nd portion of the actus reus relates to a deficiency of consent. There are by and large three lines of defense mechanism used in colza instances ; that intercourse ne’er took topographic point, that it took topographic point but non by the accused or that it took topographic point but that the victim consented to it or that the accused believed that the victim consented to it ( Baird, 1999 ) . Baird ( 1999 ) high spots that there are really few colza instances that are ‘whodunnits ‘ , and the defense mechanism that sexual intercourse ne’er took topographic point is besides rare. These defense mechanisms are likely to hold become even less common since developments in DNA testing ( Lees, 1996 ) . The issue of consent is hence what many colza defense mechanism statements concentrate on, and one of the purposes of the reappraisal of sexual offenses was to ‘clarify the jurisprudence on consent ‘ [ 19 ] .
The root of the ‘consent ‘ job lies with the demand of the prosecution to turn out the absence of consent ( instead than necessitating the defense mechanism to turn out that they had taken stairss to determine consent ) , and in many ways this job is alone to ravish instances. If, for illustration, a individual reported that their auto had been stolen it would non be necessary to turn out that it had been taken without their consent. Similarly, if an person were physically assaulted, for illustration punched in the face, they would seldom be asked if they agreed to be punched in the face. A farther job in colza instances is that the lone direct informant is likely to be the colza victim, which means that instances frequently come down to one individual ‘s word against the other. If the suspect says that the victim consented and the victim says she did non consent so it is hard to formalize either individual ‘s statement of the act [ 20 ] . Because of the nature of sexual piquing it is improbable there would be a 3rd party available to straight confirm either statement.
The Sexual Offences ( Amendment ) Act 1976 was the first to utilize the term ‘consent ‘ in codified – antecedently it had been force that was named as the relevant factor. However, consent had been an issue within common jurisprudence since 1845 in Camplin in which the adult female was drugged with intoxicant and it was ruled that, although no force had been used, it was clear that the act was against the adult female ‘s will and that she could non hold consented to it. Since so, there have been other instances where consent is automatically deemed to be absent [ 21 ] , which Temkin ( 2000 ) refers to as the ‘category attack ‘ . The instance of Olugboja [ 22 ] in 1981 nevertheless, appears to hold changed the criterions needed to demo non-consent. In this instance it was ruled that consent was a province of head and that the jury should be directed to do up their ain heads as to whether consent was present based on the victim ‘s province of head at the clip of the colza. This appears to turn over the legal criterions that had been developed utilizing the ‘category attack ‘ . However, this is ill-defined and Temkin ( 2000 ) described the state of affairs as holding a ‘threefold uncertainness ‘ . The first component of uncertainness was because there was no statutory definition of consent. Second, the Olugboja determination individualised instances sing consent hence moved off from the thought of a legal criterion of non-consent. Finally, there was uncertainness sing whether or non Olugboja had replaced the old common jurisprudence ‘category attack ‘ .
The Sexual Offences Act 2003 addressed these uncertainnesss by specifying consent as ‘a individual consents if he agrees by pick, and has the freedom and capacity to do that pick ‘ ( subdivision 74 ) and by returning to the class attack by naming the classs in legislative act. However, the 2003 Act differentiates between six classs where consent is presumed to be absent, unless there is sufficient grounds to the contrary to raise an issue that the suspect moderately believed that the victim consented, and two classs where consent is once and for all presumed to be absent. This means that the issue of consent still, to some extent, relies upon the mental province of the suspect, even in instances such as where the victim was asleep, sing force from the suspect, or unlawfully detained [ 23 ] , although the load of cogent evidence is reversed in these state of affairss with the suspect required to show the stairss he took to determine consent.
4.2 The work forces rea ( guilty head )
This 2nd portion of the offense of colza – the work forces rea – is based on the premiss that an person should non be punished for an act that they did non cognize they were perpetrating at the clip of the act. Although the actus reus and the work forces rea are constituents of all offenses, the work forces rea merely becomes relevant when the behavior in inquiry contains some degree of ambiguity.
The demand to turn out both the actus reus and the work forces rea is applicable to other offenses besides colza. The most on a regular basis used illustration is the offense of trespass ; it is against the jurisprudence to intrude onto another ‘s belongings, but a individual can non be convicted if they did non cognize they were intruding ( i.e. if private belongings was non clearly marked ) .
Whether or non a individual intended to perpetrate a offense is likely more cardinal in colza instances than for other condemnable offenses when it comes to turn outing the ‘guilty head ‘ . Previously, if a adult male committed the actus reus of colza – the guilty act, but he candidly believed that the adult female was accepting irrespective of how unreasonable that belief was, he can non be convicted of colza because the work forces rea [ 24 ] – the guilty head – was non present. This was known officially as the ‘mistaken belief ‘ clause and informally as the ‘rapists charter ‘ ( Temkin, 1987 ) because it meant that a adult female could be actively non-consenting, even shouting ‘no ‘ and fighting to liberate herself, and a adult male could still be acquitted of colza. It is a defense mechanism that is really hard, if non impossible, to confute because the defense mechanism relies upon what was traveling on the suspect ‘s head.
The ‘mistaken belief ‘ clause was foremost introduced in Morgan [ 25 ] in 1976 when a hubby colluded in the raping of his married woman by three of his friends. He allegedly told his friends that his married woman would fight and state ‘no ‘ , as though she did non desire to hold intercourse with them, but that this ‘turned her on ‘ because she was ‘kinky ‘ . The accused work forces claimed that they candidly believed she was basking it and accepting and that they did non mean to ravish her – in other words they ne’er had a guilty head. Although in the Morgan instance the work forces were convicted, and the hubby convicted of helping and abetting, this instance put a new case in point. The House of Lords ruled that if a adult male candidly believed that a adult female consented, irrespective of how unreasonable this belief was, he could non be found guilty of colza.
Feminist militant groups campaigned for many old ages that the misguided belief defense mechanism should be based on some trial of rationality or that the misguided belief clause should be abolished wholly. These are issues that have been widely debated throughout the common-law universe. In Australia this issue divided colza jurisprudence reform candidates into two groups ; the ‘subjectivists ‘ who argued that the Morgan opinion should be upheld – i.e. if a adult male candidly believes that a adult female consents to sexual intercourse regardless of how unreasonable that belief is he should non be found guilty of colza, and the ‘objectivists ‘ , who argue that the belief should be sensible ( Gans, 1997 ) . In Victoria, Australia, the statement against the amendment or abolition of the ‘mistaken belief ‘ defense mechanism was based upon informations from an empirical survey commissioned by the Law Reform Commission of Victoria. This research found that in an scrutiny of 51 colza tests the ‘mistaken belief ‘ defense mechanism was used in 23 per cent of instances. Furthermore, it was found that acquittals were really less likely in these instances ( Law Reform Commission of Victoria, 1991a, 1991b ) . They concluded that although the acceptance of objectivism would hold some consequence on the results in colza tests, this impact would be really little ( Law Reform Commission of Victoria, 1991b ) . This sentiment did non run into with cosmopolitan understanding, and Gans ( 1997 ) argues that the methodological analysis, and therefore the findings, of this portion of the research was basically flawed, invalid and deceptive. He criticises the research for non taking into history pre-trial determinations on abrasion, and argues they should hold included all reported colza instances when advertising the strong belief rate instead than merely those instances that got to tribunal. Gans besides argues the Victorian research ignored the function of the ‘honest belief ‘ within juryman determination devising and had obscure coding classs around consent and honorable belief. He suggests that, by re-coding the information, at least 74 per cent instead than 23 per cent of the tests really had at least some component of the ‘mistaken belief ‘ defense mechanism and warns that while successful jurisprudence reform should be based upon empirical research, cautiousness should besides be exercised.
In England and Wales no empirical research has of all time addressed this topic, and it is hence impossible to cognize the graduated table of the job here [ 26 ] . In the Sexual Offences Review there was much argument about the misguided belief defense mechanism, but no clear understanding was reached as to what should be recommended. Around a 3rd of the respondents to the colza and sexual assault subdivision of the Review argued that Morgan should be changed so that a belief must be both honest and sensible ( Home Office, 2000a ) . Alongside these responses, a post card run to Jack Straw ( so the Home Secretary ) was organised by the feminist militant group Campaign to End Rape, which called for a entire dismissal of the Morgan opinion. The argument within the reappraisal was non whether Morgan should be changed per Se ( the Home Office colza seminar and the Review ‘s External Reference group agreed that it should be changed ) , but instead how it should be changed, and what, if anything should replace it.
After much argument, the Sexual Offences Act 2003 defined the work forces rea of colza as if ‘A does non reasonably believe that B consents ‘ ( subdivision 1c ) . Whether or non the belief is classed as sensible is determined after sing all the fortunes, including any stairss A may hold taken to determine whether B consents. It is excessively early to see what impact this may hold had, and the deficiency of any baseline s makes rating hard unless this were to be conducted retrospectively or utilizing interviews with attorneies.
The reformed colza jurisprudence, as of May 2004 can thereby be summarised as if ‘A ‘ deliberately penetrates the vagina, anus or oral cavity of ‘B ‘ with his phallus, and if ‘B ‘ does non accept to the incursion and ‘A ‘ does non reasonably believe that ‘B ‘ consents ( paraphrased from subdivision 1 of the Sexual Offences Act 2003 ) .
Although there were piecemeal reforms made between 1956 and 2003, none of these had any impact on the continued lessening in the strong belief rate. It is excessively shortly to cognize how the 2003 Act will be interpreted and what, if any, impact it will hold. Although consent has now been defined in legislative act, this does non work out many of the issues associating to consent. It remains a job that the jurisprudence equates passiveness or non-resistance with consent ( Henning, 1997 ) , particularly when there is no grounds of physical force or if the victim had consented in the yesteryear ( Harris and Weiss, 1995 ) . The re-wording of the work forces rea so that the belief in consent must be sensible is a important measure forwards, nevertheless it is excessively early to cognize how ‘reasonable ‘ will be interpreted in instance jurisprudence ( i.e. sensible to who? under what fortunes? ) .
There was some agnosticism associating to what impact the Sexual Offences Act 2003 would hold even during the audience phases. In 2001, for illustration, Rumney warned that the reappraisal might take to ‘another false morning ‘ ( pg. 890 ) because of its exclusive focal point on the black missive jurisprudence. In other words, it is improbable that work forces will ‘decide non to ravish ‘ merely because the Torahs have been somewhat strengthened. Similarly, the high abrasion rate is non entirely related to how colza is defined in jurisprudence, so the impact here may besides be fringy. Goldberg-Ambrose ( 1992 ) suggests that jurisprudence reform should concentrate on the test procedure, peculiarly on how regulations of grounds and the ways in which colza instances are constructed relate to societal perceptual experiences of gender, coercion and gender. This suggests that it may be necessary to look farther than the ‘black missive jurisprudence ‘ towards the test procedure in an effort to explicate why the jobs around the prosecution of colza persist. Although candidacy for colza jurisprudence reform is of import it may non be plenty. This has been acknowledged by women’s rightists for some clip ; for illustration, in 1984 Jeffreys and Radford argued that reforms can merely of all time be efficaciously implemented alongside a transmutation of work forces ‘s attitudes. In its most simple footings, it is likely that Torahs are easier to alter than prejudiced attitudes ( Gaines, 1997 ) .
Although there remain many issues associating to the prosecution of colza suspects, few women’s rightists in England and Wales will deny that the reformed colza jurisprudence represents a immense measure forwards. The same can be said for the other sexual offense Torahs that were reformed and with respect to the new offenses that the statute law created. Decades of antecedently dismissed women’s rightist runing have now come to fruition and the new statute law tempts ‘told you so ‘ type remarks in some topographic points. The major accomplishments of the statute law can be held as being: the keeping of colza as a gendered offense in footings of its commission ; the demand for an ‘honest ‘ belief in consent to besides be ‘reasonable ‘ ; and a complete alteration of what it means to truly consent. However, it is extremely improbable that a new jurisprudence entirely will see an terminal to the jobs adult females who are raped face within the condemnable justness system and it is of import that monitoring of the new Act Begins and is made publically available every bit shortly as possible.
Baird, V. ( 1999 ) Changes to subdivision 2 of Sexual Offences Act 1976, Medicine, Science and the Law, 39 ( 3 ) , 198-208.
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[ 1 ] Nicole Westmarland is a Research Associate in the country of gender and force at the University of Bristol, UK and a PhD campaigner at the University of York, UK. Her activism work includes Tyneside Rape Crisis Centre and the Truth About Rape Campaign.
[ 2 ] Sexual Offences Act 1956
[ 3 ] Criminal Justice and Public Order Act 1994
[ 4 ] For illustration the usage of the term ‘defective ‘ for persons with larning disablements.
[ 5 ] Morgan v DPP [ 1976 ] AC 182
[ 6 ] Research on non-reporting in England and Wales vary depending on who is carry oning the research and when the research was conducted. Recent governmental research found that two in 10 adult females who have been raped reported the incident to the constabulary ( Myhill and Allen, 2002 ) . However, dated non-governmental research suggested this may be even lower at one in 10 adult females ( Painter, 1991 ) .
[ 7 ] This is portion of an overall Labour scheme to set support victims of offense and convey more felons to justness. ( c.f. ‘Justice for All ‘ ; ‘Speaking up for Justice ‘ ; the Criminal Justice Act 2003, and programs for a new Victims and Witnesses Bill in the hereafter )
[ 8 ] In X and Y v The Netherlands in 1985 the Netherlands was held to hold violated the rights of a mentally disabled 16 twelvemonth old miss because of a loophole in the jurisprudence which meant that she was non able to do a colza ailment. In M.C. V Bulgaria in 2003 Bulgaria was held to hold violated the rights of a miss because she could non turn out non-consent because the legal definition of non-consent required force to be used and she was non physically restrained during the colzas.
[ 9 ] Including Professor Jennifer Temkin and Professor Liz Kelly
[ 10 ] Rape Crisis Federation
[ 11 ] Campaign to End Rape
[ 12 ] Sexual Offences Amendment Act 1976
[ 13 ] R V R [ 1991 ] 1 All England Law Reports, 747
[ 14 ] R V R [ 1991 ] 2 All English Law Reports 257
[ 15 ] R V R [ 1991 ] 4 All England Law Reports 481
[ 16 ] CR and SW v UK
[ 17 ] Previously, penial incursion of the oral cavity was classed as indecent assault, which covered a broad scope of sexual offenses against both grownups and kids with a maximal punishment of 10 old ages imprisonment, compared to the maximal punishment of life for colza or attempted colza.
[ 18 ] If colza had been extended to include incursion by objects other than the phallus so adult females could technically perpetrate colza and this may hold raised issues under the Human Rights Act 1998 ( Temkin, 2000a ) .
[ 19 ] This was the rubric of Chapter Two in the Protecting the Public white paper.
[ 20 ] Until 1995 Judges were required to give the ‘corroboration warning ‘ in their summing up – by warning the jury that it is insecure to convict a adult male of colza strictly on the adult female ‘s unsubstantiated grounds. Sexual offenses were one of merely two tests in which this warning was deemed necessary ( the other being child informants ) .
[ 21 ] In brief, where force, menaces, or the fright of force was apparent, if the victim was asleep or intoxicated, where fraud is involved, including the caricature of the victim ‘s hubby.
[ 22 ] [ 1981 ] 3 All ER 443.
[ 23 ] These are illustrations of the classs where non-consent is merely presumed.
[ 24 ] When speculating about sexual difference, criminology and the jurisprudence in 1980, Cousins sardonically suggested that the term ‘men ‘s rea ‘ might be a more appropriate term to utilize.
[ 25 ] [ 1976 ] AC 182
[ 26 ] i.e. what proportion of acquittals rely upon the misguided belief in consent defense mechanism