Rape without consent

Oxford Journal of Legal Studies

Volumn 26, Issue 3, 2006, Pages 515-543

  Tadros, Victor ^a  

^a UNIVERSITY OF WARWICK   (United Kingdom)

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[No Author keywords available]

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EID: 33748896484     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gql016     Document Type: Article

References (60)

1. For discussion, see J. Temkin, Rape and the Legal Process (Oxford: OUP, 2nd edn, 2002) ch. 3.
2. For a recent defence, see R. West, 'Legitimating the Illegitimate: A Comment on Beyond Rape' (1993) 93 Columbia Law Review 1442.
3. For historical discussion, see S. Schulhofer. Unwanted Sex: The Culture of Intimidation and the Failure of Law (Harvard: Cambridge, Mass. 1998) 31.
4. Ibid 90.
5. See Lord Advocate's Reference of 2001, 2002 SLT 466.
6. For example, Baron Hume, Commentaries vol. 1, at 302-3, discusses the case of James Mackie, involving the rape of Margaret Coltran, 'a poor cripple lame lass of sixteen years old, lying bedfast in her father's house and unable to make any resistance'. Hume argued that this could be rape for 'all the resistance is made that nature will allow'.
7. See S. Schulhofer above, n 3.
8. Youth Justice and Criminal Evidence Act 1999, s 34.
9. Youth Justice and Criminal Evidence Act 1999, ss 41-3.
10. For a recent problematic case on this score, see R v Mukadi (2004) Crim LR 373.
11. For critical discussion of the rules of evidence see J. Temkin, above, n 1 at ch. 4.
12. This develops an idea that I first considered in 'The Distinctiveness of Domestic Abuse: A Freedom Based Account' in A. Duff and S.P. Green (eds), Defining Crimes (Oxford: OUP, 2005).
13. Itself a difficult question, on which, see A. Wertheimer Consent to Sexual Relations (Cambridge: CUP, 2003) ch. 6.
14. See Schulhofer above, n 3.
15. For further argument, see V. Tadros 'The Distinctiveness of Domestic Abuse' above, n 11, in which I question the methodology that John Gardner and Stephen Shute adopt for identifying the core wrong of rape in 'The Wrongness of Rape' in J. Horder (ed.), Oxford Essays in Jurisprudence, Fourth Series (Oxford: OUP, 2000).
16. See R v Camplin (1845) 1 Cox 220. This was already given statutory force in the Sexual Offences Act 1956.
17. The closest that the courts had come to a 'definition' is by distinguishing consent from mere submission in R v Olugboja [1981] 3 All ER 1382.
18. Simon Gardner, in 'Appreciating Olugboja' (1996) 16 Legal Studies 275, finds a more developed approach in the decision. Whatever the merits of that approach, which I do not have space to consider in detail here, Gardner is more optimistic than I am about the extent to which juries can be trusted to resolve these issues effectively.
19. The Home Office Report Setting the Boundaries: Reforming the Law on Sex Offences vol. 1 (London: Home Office, 2000) recommended that the definition of consent should simply be 'free agreement'. See ch. 2.10. That is hardly clear but at least it is free of paradox.
20. 1982 SCCR 195.
21. Ibid at 198.
22. 'The Sexual Offences Act 2003: (1) Rape, Sexual Assaults and the Problems of Consent' (2004) Crim L R 328, 336.
23. Ibid.
24. E. Finch and V. Munro, 'Juror Stereotypes and Blame Attribution in Rape Cases Involving Intoxicants' (2005) 45 British Journal of Criminology 25.
25. See also A.P. Simester and G.R. Sullivan, Criminal Law: Theory and Doctrine (Oxford: Hart, 2nd edn (revised 2004), 2004).
26. On irrebuttable presumptions, see also R.A. Duff, 'Strict Liability, Legal Presumptions, and the Presumption of Innocence' in A.P. Simester (ed.), Appraising Strict Liability (Oxford: OUP, 2005). The argument here is not intended to suggest that there is no such thing as a conclusive presumption that p that is not definitional of p. For example, consider a world in which there is no smoke without fire. In that case, from smoke one can irrebuttably presume that there is fire. But smoke is not constitutive of fire. There might be reasons to include irrebuttable presumptions in the process of criminalization. For example, in a world in which there is no smoke without fire, there may be those who are unaware of that fact, and the irrebuttable presumption will provide important guidance for them in decision-making in arson cases.
27. For further discussion of offence definition, see V. Tadros, Criminal Responsibility (Oxford: OUP, 2005) ch. 4.
28. See Kaitamaki v R [1985] AC 147
29. R v Cooper and Schaub [1994] Crim LR 531.
30. For further evidence of the government's failure to appreciate that the victim is not on trial in rape cases, consider the problematic statement in Protecting the Public: Strengthening protection against sex offenders and reforming the law on sexual offences (HMSO: Cm 5668), 17, that, in determining whether the accused behaved reasonably in respect of consent, the jury 'would have to take into account the actions of both parties, the circumstances in which they have placed themselves and the level of responsibility exercised by both'. Suppose that there is a circumstance which might mislead the defendant into thinking that the complainant consents in a particular case. He ought to investigate whether she is consenting but she doesn't. Why does her responsibility, if any, for the misleading circumstance make any difference whatsoever as to whether the defendant ought to be convicted of rape? This is part of a broad misunderstanding of the government about reform of sexual offences, and criminal justice more generally, that the role of the criminal justice system is to balance fairly the interests of defendants and victims.
31. See E. Finch and V. Munro,'The Sexual Offences Act 2003: Intoxicated Consent and Drug Assisted Rape Revisited' (2004) Criminal Law Review 799-801.
32. Ibid.
33. Even more problematic was the original intention of the government, outlined in Protecting the Public, above n 27 at p. 16, to place a legal burden of proof on the defendant.
34. [2004] 1 WLR 2111 at 2134, para 52.
35. In the context of rape involving intoxication, see also E. Finch and V. Munro, above n 28, 793-4.
36. See Ashworth and Temkin, above n 20.
37. [1976] AC 182.
38. See, for example, C. Wells, 'Swatting the Subjectivist Bug' (1982) Crim LR 209
39. and J. Temkin, above n 1.
40. Above, n 17.
41. For an account of the racism and sexism manifest in judicial development of provocation, see V. Tadros, above, n 25 ch. 13.
42. For judicial withdrawal from the problem, see HMAG for Jersey v Holley [2005] UKPC 23.
43. The example was developed in R.H.S. Tur, 'Subjectivism and Objectivism: Towards Synthesis' in S. Shute, J. Gardner and J. Horder (eds) Action and Value in Criminal Law (Oxford: OUP, 1993).
44. Above, n 17 at 14.
45. See Tadros, above n 25 at ch. 9.
46. See Schulhofer, above n 3 at ch. 2.
47. In this context, see A.P. Simester and G.R. Sullivan, above n 23 at 418.
48. For a general discussion of the issue see Tadros, above n 25 at ch 8.
49. Setting the Boundaries, above n 17, at 20 recommended that there should be a non-exhaustive list of examples where consent is absent. It was also recommended that there be a model direction on the meaning of consent.
50. See, for example, D. Dripps, 'Beyond Rape: An Essay on the Difference Between the Presence of Force and the Absence of Consent' (1992) 92 Columbia Law Review 1780
51. and the powerful critique in R. West, 'Legitimating the Illegitimate: A Comment on Beyond Rape' (1993) 93 Columbia Law Review 1442. Comparisons with property offences have also been used with more sensitivity
52. for example in Schulhofer, above n 3 at ch. 7.
53. 'Unspeakable Subjects, Impossible Rights: Sexual Integrity and Criminal Law' in Unspeakable Subjects: Feminist Essays in Legal and Social Theory (Oxford: Hart, 1998), 106. Part of the argument in this article builds on the insights articulated in Lacey's essay.
54. See S. Lees, Carnal Knowledge: Rape on Trial (London: Penguin, 1996), ch. 5.
55. The Home Office Report Setting the Boundaries (HMSO 2000), above n 17 at 16 suggests that the Home Office team considered and rejected differentiating by level of seriousness but did not appear to consider differentiating in kind.
56. See Schulhofer, above n 3 at 104-5.
57. See Temkin, above n 1 at 153-5.
58. The importance of ensuring that the defence is not available in abusive relationships was highlighted to me by Cara Jardine in my criminal honours class at the University of Edinburgh.
59. It is sometimes supposed that it should not. I think that this is a mistake. Respecting the autonomy of the voluntarily intoxicated to have intercourse requires that the level of intoxication that grounds rape in cases of voluntary intoxication is high. But that level would be much higher than that sufficient appropriately to ground a rape conviction in a case of involuntary intoxication.
60. For just some of the problems, see Schulhofer, above n 3 at chs 7 and 8.