Handbook on Sexual Violence (22 page)

place the determination ‘solely in the judgment of the victim and omit the necessary element of a reasonable apprehension and reasonable ground for such fear; and the reasonableness must rest with the fact finder.’ Surprisingly the court didn’t find that it was a ‘harmless error’ since a fact finder should (if asking whether the reasonable woman would have been afraid) have found that the fear was reasonable. The court seemed to suggest that a trier of fact might not find the fear in this case reasonable. What is the standard of reasonable?

Again, looking for physical force and physical resistance in
Commonwealth
v.
Minarich
, where Minarich threatened a 14-year-old girl living in his custody with return to the detention home if she refused sex with him. The court found no forcible compulsion, hence no rape. The court said the legislature ‘did not intend to equate seduction, whether benign or sinister, with rape . . .‘ Here is an obvious power relationship where no physical force was required, but the courts still look for them. And in 1994 in
Commonwealth
v.
Berkowitz
, a 19-year- old sophomore at a Pennsylvania college one afternoon went to the dorm where her boyfriend lived. While waiting for him to return she entered the room of an acquaintance, Robert Berkowitz. She sat on the floor and talked with him for a while. He sat next to her and began kissing and fondling her. She protested at his advances and said that she had to go. Berkowitz disregarded her protests, got up and locked the door, came back and pushed her on the bed, lay on top of her, removed her clothes, and penetrated her. Throughout she was saying ‘no’. Berkowitz said that he took the ‘nos’ to be passionate moaning. He was found not guilty of rape since the court could not find force.

England, Wales and Canada have explicitly dropped the force requirement, in the UK requiring consent and, in Canada, going even beyond that in what appears a very progressive reform requiring affirmative consent. The Sexual Offences Act of 2003 in England and Wales says that rape occurs when someone ‘intentionally penetrates the vagina, anus or mouth of another person with his penis’ and that the other person does not consent to the penetration.’ How consent is defined was a major revision in the sexual assault laws of the UK. The act requires ‘free agreement’ to take place for a sexual relationship to be consensual and there is no requirement for force. Nevertheless, even with what appear to be radical progressive reforms to the law of sexual offences, results such as the ones in
R
. v.
Dougal
((2005) Swansea Crown Court) and
R
v.
Bree
((2007) EWCA 256) occur where there were no findings of rape because of the intoxication of the victims. The victims were unable to remember all the details of the occurrences (in both of these cases the victims were in and out of consciousness) and the judges held that ‘drunken consent is still consent’ (Dougal 2005: 176). In the Crown’s closing remarks, it argued that the reason the victim hadn’t resisted (and thereby shown that she hadn’t consented) was due to the effects of alcohol (Bree 2007). As Sharon Cowan argues about these cases:

[H]ow do we know when a woman is too drunk to consent? How do we know whether or not she has consented to sex if she herself does not know, because she cannot remember the event?
R v. Bree
alongside
R v. Dougal
. . . seems to suggest that if she cannot remember a refusal, or

indeed if she cannot remember anything at all, providing that she was conscious, then she will be presumed to have consented, or at least, the man’s belief in her consent will stand, and it is not rape

(Cowan 2005: 914)

Presumed to have consented because the victim was too incapacitated to remember what happened. In no other area of the law would that type of circumstance result in a finding of consent.

Canada’s new legislation, which requires affirmative consent, would appear to circumvent the problem of smuggling in the resistance requirement and having a baseline presumption that the woman is consenting. Positive and affirmative consent has resulted in Canadian courts increasing conviction rates in many cases where the victim is intoxicated or passed out, and therefore incapable of consent. Still, there are many instances, as Lise Gotell argues, where women are viewed as ‘risk takers’, they are drug addicts, runaways, or homeless, and thereby perceived as not exercising appropriate caution as ‘good’ women should, their behaviours are scrutinised and criticised and found to come up wanting (Gotell 2008). For example, consider the case of a Saskatchewan 12-year-old aboriginal girl who was running away from home and was picked up outside a bar by three white men. After giving her numerous beers in less than an hour, the men proceeded to have sex with the girl even as she went in and out of consciousness. The judge portrayed her behaviour in running away and willingly getting into the truck with the men and drinking the alcohol as behaviour signalling that she was, in his words, the ‘sexual aggressor’ and not the victim. The appropriateness of women’s behaviour and whether they can thereby be a victim of sexual violence is still being judged by the criminal justice system of Canada.

Mens rea
for rape: honest or reasonable beliefs

Guilt for the crime of rape, along with most serious crimes, requires the defendant to have a specific mental state, or
mens rea
. The defendant’s mental state refers to what he actually believed or understood at the time of the crime. For rape, the defendant must have believed that his victim was not consenting or believed that she might not be consenting. Defendants may claim ‘mistake’ about the consent of the victim, that is, claim as a defence for rape that they believed their victims were consenting in the situation, and thus fail to have the mental state necessary for the crime.

The UK House of Lords held in the famous (or infamous)
Morgan
decision that unreasonable but honestly held beliefs should exculpate or excuse from liability for rape. The details of the 1975 case are as follows: Morgan was a senior non-commissioned officer in the RAF and invited his three drinking partners, who were his subordinates, to have sex with his wife, claiming that she liked ‘kinky’ sex and would feign refusal but in fact welcomed the intercourse. The four men dragged Mrs Morgan from the room where she was sleeping to a room with a double bed. They held her down while each of them took turns having intercourse with her. Throughout, she vigorously physically

and verbally protested, including screaming to her children to call the police. Morgan, because he was her husband, could not be charged with rape, but was charged with aiding and abetting rape. The other three men were charged with rape. Relying upon the story that Morgan had told them, they said that they believed that she was consenting. They argued at trial that they thought she had consented, and consequently, could not be convicted of rape since they did not have the
mens rea
for rape. The trial judge in his instruction to the jury added that the belief about consent to exculpate had to be reasonable, that is, ‘such a belief as a reasonable man would entertain if he applied his mind and thought about the matter’. The defendants were subsequently convicted. They appealed, claiming that the judge erred in giving that instruction to the jury. Any belief in consent, they argued, as long as it was honestly held, would be incompatible with the intention to commit rape. The House of Lords accepted the argument that unreasonable but honestly held beliefs would exculpate. In other words, any belief about the woman’s consent, no matter how objectively unreasonable, would establish that the defendant was without fault and, hence, could not be convicted of the crime of rape.

Many people saw serious problems with
Morgan
. It permits a defendant to be acquitted of rape if he believes that a woman is consenting, no matter what his reasons are for believing it. In favour of
Morgan
were theorists like Glanville Williams, who argued that not permitting unreasonable mistakes to exculpate is to convict a man for being stupid. ‘To convict the stupid man would be to convict him for . . . honest conduct which may be the best that this man can do but that does not come up to the standard of the so-called reasonable man’ (Williams 1975).

The Sexual Offences Act of 2003 explicitly addressed this issue and requires that the belief be reasonable; an unreasonable belief that is honestly held will no longer exculpate the accused. What, however, constitutes a ‘reasonable belief’ and who defines it are still important questions. As long as men, police, prosecutors, judges and juries continue to believe myths and stereotypes about women – for instance, that ‘no’ means ‘yes’, that women require some force, that women desire to live out rape fantasies, and so on – then it may be true in many cases, particularly the so-called acquaintance rape cases, that the defendants will lack the
mens rea
for the crime. In
Dougal
, the defendant claimed that he believed that the victim had consented to sex with him even though she was intoxicated. She claimed that there was no way that she would have consented to sex with the man since he was a complete stranger to her. Was it a reasonable belief for this security guard at the university where the victim was a student to believe that an intoxicated student whom he didn’t know would consent to have sex with him?
Rusk
, an American case discussed earlier, illustrates the problem with the ‘reasonable belief’ standard for consent based on what men in a sexist society would believe reasonable in the circumstances; namely, that since he did not use ‘excessive’ force and she did not strenuously resist, then she was consenting. Unless the standard of ‘reasonable belief’ includes what women would consider reasonable in those circumstances, the standard may continue to fail to protect women from sexual assault.

Conclusions

Criminal rape laws have come some distance from the days of Blackstone’s
Commentaries
. At least in some places, husbands can be liable for raping their wives, force and resistance are not explicitly required as independent elements for rape, independent corroboration is not always necessary, shields against regular introduction of sexual history are in place, prompt complaint is not a requirement, and consent is required. Nevertheless, not only are there many places globally where these rules are not in place but even in nations appearing to have progressive legal reforms, such as Britain and Canada, the old standards and myths get smuggled into the process through entrenched attitudes by agents in the system, namely, police, judges and even the public. After considering the problems that arise out of the historical treatment of rape, the question becomes, can laws and policies be changed enough to protect women’s sexual autonomy? Educating the public, changing views about women and sexuality, including recognising the continuum of violence that many women experience, may ultimately be needed to address the problems of sexual violence. Nevertheless, the legal system should demand more from men’s behaviour in regards to sexual interactions. When seeking a sexual interaction, men should proceed with caution, ensuring consent is obtained, that the person has the prerequisites for consent – namely that they are not incapacitated in various ways – and that the circumstances are not coercive or exploitative, and they should recognise the risks involved for the failure to behave cautiously. The legal system itself should be held to a higher standard to protect women from sexual violence and not perpetuate gender stereotypes which seriously diminish the status of women and undermine women’s sexual autonomy.

Further reading

Starting with Brownmiller’s seminal text (Brownmiller, S. (1975)
Against Our Will: Men, Women, and Rape
. New York: Simon and Schuster) the following are a selection of classic works addressing philosophical issues pertaining to rape: Archard, D. (1998)
Sexual Consent
. Boulder: Westview Press; Brison, S. (2002)
Aftermath: Violence and the Remaking of a Self.
Princeton: Princeton University Press; Burgess-Jackson, K. (1996)
Rape: A Philosophical Investigation
. Brookfield, VT: Dartmouth Publishing Company; Burgess-Jackson, K. (ed.) (1999)
A Most Detestable Crime: New Philosophical Essays on Rape
. New York: Oxford University Press; Cahill, A. (2001)
Rethinking Rape
. Ithaca NY: Cornell University Press; Card, C. (1991) ‘Rape as a Terrorist Institution’, in R. Frey and

C. Morris (eds)
Violence, Terrorism, and Justice
. Cambridge: Cambridge University Press, pp. 296–319; Davis, A. (1981) ‘Rape, racism, and the myth of the black rapist’, in
Women, Race, and Class
. New York: Vintage Books; Estrich, S. (1987)
Real Rape
. Cambridge MA: Harvard University Press; Frye, M. and Shafer, C. (1977) ‘Rape and respect’, in M. Vetterling-Braggin, F. Elliston and J. English (eds)
Feminism and Philosophy
. Savage, MD: Rowman and Littlefield, pp. 333–46; Husak, D. and Thomas,

G. (1992) ‘Date rape, social convention, and reasonable mistakes’,
Law and Philosophy
, 11: 95–126; MacKinnon, C. (1987)
Feminism Unmodified: Discourses on Life and Law
. Cambridge MA: Harvard University Press; MacKinnon, C. (1989)
Toward a Feminist Theory of the State
. Cambridge MA: Harvard University Press.

Looking more particularly at the issue of consent, the following are helpful reading: McGregor, J. (1996) ‘Why when she says no she doesn’t mean maybe and doesn’t mean yes: A critical reconstruction of consent, sex, and the law’,
Legal Theory
, 2: 175–208; McGregor, J. (2005)
Is It Rape?: On Acquaintance Rape and Taking Women’s Consent Seriously
. Hampshire: Ashgate Publishing; Pineau,

1. (1989) ‘Date rape: A feminist analysis’,
   Law and Philosophy
   , 8(2): 217–43; Scheppele, K. (1991) ‘The reasonable woman’,
   The Responsive Community
   , 1(4): 36–47; Schulhofer, S. (1998)
   Unwanted Sex: The Culture of Intimidation and the Failure of Law
   . Cambridge MA: Harvard University Press.
   

   References
   

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   Arce, Rose Marie (1989) ‘Women rap rape judge’,
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   Bienen, Leigh (1980) ‘Rape III – national developments in rape reform legislation’,
   

   Women’s Rights Law Reporter
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   Blackstone, William (1765)
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   CNN.com (2007) ‘Saudi court ups punishment for gang-rape victim’ available at http:// edition.cnn.com/2007/WORLD/meast/11/17/saudi.rape.victim/
   

   Cowan, Sharon (2005) ‘The trouble with drink: Intoxication, (in)capacity and the evaporation of consent to sex’,
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   Davis, Michael (1984) ‘Setting penalties: What does rape deserve?’
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   Dyer, Clare (2008) ‘Judges admit they get round law designed to protect women in rape trials: Sexual history is still being introduced at hearing: New book reveals judicial attitudes to legislation’,
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   Estrich, Susan (1987)
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   Gotell, Lisa (2008) ‘Rethinking affirmative consent in Canadian sexual assault law: Neoliberal sexual subjects and risky women’, 41
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   Griffin, Susan (1971) ‘Rape: The all-American crime’,
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   Kelly, Liz (1988)
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   Kelly, Liz, Lovett, Jo and Regan, Linda (2005)
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   Neuwirth, Jessica (2004) ‘Unequal: a global perspective on women under the law’, MS. Available at http://www.msmagazine.com/summer2004/globalwomen/law.asp
   

   Note: ‘Forcible and statutory rape: An exploration of the operation and objectives of the consent standard,’ 62 (1952). This note is recited many times, most recently in comments to the influential edited
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   Tong, Rosemary (1984)
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   Williams, Glanville (1962) ‘Corroboration – Sexual cases’,
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   Williams, Glanville (1975) Letter to
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   Chapter 4
   ‌
   

   

   Developing measures of multiple forms of sexual violence and their contested treatment in the criminal justice system
   

   Sylvia Walby, Jo Armstrong and Sofia Strid
   

   Meet Sylvia Walby
   

   Sylvia Walby is Professor of Sociology and holds the UNESCO Chair in Gender Research at Lancaster University UK. She has worked with Jo Armstrong and Sofia Strid in the Gender Research Group on several projects including gender-based violence against women, the measurement of equality, the comparison of gender equality policies in the EU in the context of intersecting inequalities, and the gendering of the financial crisis, with funding from the EU, the Equality and Human Rights Commission and UNESCO. She has worked with the Home Office in the development of the measurement of domestic violence, sexual assault and stalking in the British Crime Survey, with the Women and Equality Unit in the measurement of the cost of domestic violence, and with the UN in the development of indicators of violence against women. In her book,
   Globalization and Inequalities: Complexity and Contested Modernities
   (Sage 2009), she argues that it is important that social science theorises violence as a fourth institutional domain alongside the economy, polity and civil society, in recognition of its importance in structuring inequalities and social relations.
   

   Meet Jo Armstrong
   

   Jo Armstrong is currently a researcher in the Sociology department at Lancaster University and a member of the UNESCO Chair in Gender Research group. She has worked on equalities issues for several years, particularly
   

   gender equality, and has been involved in a variety of projects which have examined the measurement of and policies to tackle violence against women. These projects include two reviews of data and indicators for the Equality and Human Rights Commission in Britain, as well as comparative work at the EU level on gender equality policies. Having previously researched the classed and gendered dimensions of women’s work, she is now working on bringing together the fields of employment and violence to explore the impact of the economic climate on levels of violence against women.
   

   Meet Sofia Strid
   

   Sofia Strid is a researcher in the Sociology department at Lancaster University, a lecturer in Gender Studies at Orebro University, Sweden, and a member of the UNESCO Chair in Gender Research Group. Sofia’s research interests and projects include gender equality and the intersection of multiple inequalities, in particular in the policy field of violence against women; the quality of gender-based violence policy; comparative (gender) equality policy; and the institutionalised relation between political authorities and feminist civil society. Her most recent project examined the criminal and legal justice system in Britain with a special focus on violence and was carried out for the Equality and Human Rights Commission.
   

   Introduction
   

   What is sexual violence and how is it measured? What are the implications of using and taking different definitions and different approaches to its measurement? This
   chapter addresses the measurement of a wide variety of forms of sexual violence. The breadth of definition and the nature of the procedures to measure sexual violence have changed very considerably since Kelly (1988) wrote her book on the ‘continuum’ of sexual violence. The chapter focuses on the UK criminal justice system, while recognising that many forms of sexual violence have only recently been named and recognised as important within the criminal justice system, and others are still treated as if they were marginal to it.
   

   There are three main forms of measurement of sexual violence. The first and most reliable is that of a nationally representative population survey, such as the British Crime Survey, though this addresses only the most common forms of sexual violence. The second is that of administrative data: offences recorded by the police as ‘recorded crime’ and data on cases where a criminal conviction has been obtained. The third form of measurement is found in small-scale studies, often by academics and non-governmental organisations (NGOs), using a diverse range of methods and sources. In addition to these, there are important derivative statistics for public policy purposes: the ‘attrition’ or ‘conviction’ rate that identifies the proportion of cases that are brought to justice.
   

   There have been significant changes in the measurement of sexual violence,
   

   which take place in the context of a dynamic policy environment, in which government is responding to pressure from NGOs and other experts (Walklate 2008). The law on sexual offences in Britain has undergone review and revision (Sexual Offences Act 2003). An action plan on tackling sexual violence and abuse was developed by the British government in 2007 (HM Government 2007), the government launched a strategy and an action plan to end violence against women and girls in November 2009 and in March 2010 respectively (HM Government 2009a, 2010), following a wide-ranging consultation (HM Government 2009b). The Crown Prosecution Service since around 2005 has embarked on a major programme of reform in practice and data collection including: domestic violence and sexual offences policies (e.g. CPS 2008a, 2009a, 2009b, 2009d); and a consultation on the single equality duty for 2010– 11 (CPS 2009c). There have been a number of reviews and reforms especially the Stern Review (Stern 2010) into the way rape complaints are handled. In addition, there have been developments in the way police respond to sexual violence, as well as the emergence of specific services such as Rape Crisis Centre phone lines and Sexual Assault Referral Centres (Lovett
   et al
   . 2004).
   

   The aims of the chapter are to provide both an outline of the forms of data
   

   available and an illustration of the ways in which this data can be used to develop indicators to assess change. It also intends to convey the importance of properly understanding matters of definition and methods in measuring sexual violence.
   

   Defining sexual violence
   

   There are different ways of defining sexual violence. While rape and sexual assault have long been recognised as forms of sexual violence, indeed legally identified as ‘sexual offences’ (Home Office 2008a), though with changing definitions (Home Office 2000a, 2000b), the potential inclusion of sexual harassment, stalking, female genital mutilation, forced marriage, and trafficking are more recent developments.
   

   Kelly (1988: 41) defines sexual violence as ‘any physical, visual, verbal or sexual act that is experienced by the woman or girl, at the time or later, as a threat, invasion or assault, that has the effect of hurting her or degrading her and/or takes away her ability to control intimate contact’. This definition has the advantage of conceptual breadth and naming the interconnections between different forms of sexual violence, but it is not helpful in distinguishing between its different forms. There is also a problem in the restriction of the victim/survivor only to women. While most sexual violence is against women and girls, not all of it is, so it is inappropriate to build this restriction to women and girls into a definition of sexual violence. The chapter here tries to distinguish between different forms of sexual violence, even while recognising that they may be part of a continuum. It does not restrict victims/ survivors to women and girls, even though most of them are. It addresses the issue of different points of view in the definition of the act of sexual violence, by including not only reports by victims/survivors to surveys, but also the judgement of the criminal justice system at different stages in the processing