SEX AND THE LAW 23 September 2010 ‘REAL’ RAPE? ‘REAL’ CONSENT? Dr Kim Stevenson

What is ‘Real Rape’?

So What is Real Rape? –Crime of violence? –Violation of autonomy? –Invasion of privacy? –Moral injury?

Consent s74 SOA 2003 Where a person agrees by choice and has freedom and capacity to make that choice

Rape Myths “ myths may infect the case-handling of some police investigators and Crown prosecutors …they are not a big problem in trials …rape juries do not habitually apply victim stereotypes to acquit defendants” (Wolchover and Heaton Armstrong 2009)

R v D(JA) 2008 CA What can Juries be told about rape myths? Delay in making complaint? Impact of partner rape?

Proving Non-consent s75 Evidential presumptions –Violence/threats –Violence to 3 rd person –Detain unlawfully –Unconscious –Physical disability –Administer substance s76 2 Conclusive Presumptions –Deceit as to nature or purpose of act –Impersonation

(Self?) Induced Intoxication? “women whose inebriation is more or less voluntary must take their chances in the legal process without the benefit of evidential presumptions” (Temkin and Ashworth)

Bree CA 2008 “the jury should have been given some assistance with the meaning of capacity in circs where the complainant was affected by her own voluntarily induced intoxication …and to what extent they could take that into account” (Sir Igor Judge)

“Since no one in the prosecution team dares to challenge an allegation of sexual assault these days it is not until the complainant is cross-examined at court that the evidence is tested in anyway and the result is that all sorts of cases get to court where the quality of the evidence is so poor that it would be a great surprise if the jury did convict…

…But since for the moment the emphasis remains on the physical comfort of the complainant, sitting on a comfy sofa and giving evidence in an atmosphere far removed from the realities of the courtroom it is less of a surprise to advocates on both sides that conviction rates remain as low as they are.”

What Next? Police Review? Anonymity for defendants? Allow expert evidence? Female judges? Judicial Inquiry? Abolition of jury? Jury screening? Narrative v cross examination? Press Responsibility?