The burden of proof

A woman's consent was at the centre of the recent overhaul of the sexual-offences laws, yet according to Lisa Longstaff, who consulted on the reforms, it is still up to women to prove that they were raped

A radical overhaul of our ancient sexual-offences laws was at the centre of the Command Paper Protecting the Public, published by the Government last week. A key aim of the reform was to address the low conviction rate for rape, which still stands at just 7 per cent, even though more women than ever are coming forward to report their allegations to the police. In rape prosecutions, the central issue is the woman's consent. Yet according to the 1976 legislation, if a man claims he believed the woman consented, even if his belief was clearly unreasonable, he cannot be found guilty of rape. To justify the man's belief, the defence is allowed to cross-examine the victim on the intimate details of her entire sexual history, a main reason why prosecutions fail.

A radical overhaul of our ancient sexual-offences laws was at the centre of the Command Paper Protecting the Public, published by the Government last week. A key aim of the reform was to address the low conviction rate for rape, which still stands at just 7 per cent, even though more women than ever are coming forward to report their allegations to the police. In rape prosecutions, the central issue is the woman's consent. Yet according to the 1976 legislation, if a man claims he believed the woman consented, even if his belief was clearly unreasonable, he cannot be found guilty of rape. To justify the man's belief, the defence is allowed to cross-examine the victim on the intimate details of her entire sexual history, a main reason why prosecutions fail.

When the Government Women's Unit justified this aspect of the law, it caused a public outrage. The Women's Unit says in a letter to War Against Rape (WAR): "A defendant might claim that he believed the complainant was consenting because he had been told that she always kicked and screamed during sex. This would be relevant to his honest belief." The Unit was publicly embarrassed; its director apologised. The Times reported (1 March 1999) that "The Minister for Women, Baroness Jay of Paddington, was at the centre of a row last night over plans to reform the admissibility of the sexual history of a woman victim as evidence in rape trials...".

The principle of belief in consent was established in the 1975 Morgan ruling, following a trial in which three rapists said they had been told by a fourth – the woman's husband – that his wife was available for sex and they should expect her to struggle, but ignore it since she was "kinky". Their conviction was upheld, but the principle was nevertheless enshrined in rape law in 1976. This was met with a storm of protest and called a rapist's charter. It is even more obscene today.

The Command Paper says it plans to define circumstances where consent is "most unlikely to have been given", for example, where the victim was unconscious, feared or experienced force, or a third party had agreed to sex on her behalf. Although much of this has been established in case law, and is obvious to most people, courts cannot be relied on to implement it.

And this is the key to rape trials. The court is not a level playing field, but an arena where the woman is routinely put on trial by the defence without much complaint from either the prosecution or the judge. In such a context, consent and belief in consent become the most crucial and contentious issue in rape law, and proves central to most trials.

The Command Paper is based on an earlier review of the law, Setting the Boundaries, published in July 2000. We now know that more than half of those responding to the review team's recommendations wanted Morgan scrapped.

The Command Paper has recommended that the defence that the man's belief in the woman's consent be "modified" but not, as has been reported in the media, thrown out. They propose to test whether the man's belief is reasonable. "Reasonable" will be judged by reference to what an objective third party would think in the circumstances. But third parties in court have shown themselves to be less than reasonable and objective where rape victims are concerned. The new proposals mean that in some circumstances the man will no longer be able to presume consent, for example, if the woman is unconscious.

Other changes we pressed for, such as abuse of authority (if an employer, a policeman, a doctor or a priest rapes you, you are more likely to be intimidated and less likely to be believed), threats to your children (not uncommon among husbands who commit rape) and financial deprivation, were ignored.

Some lawyers and the media say that restricting belief in consent shifts the burden of proof on to the defendant. It does not; it would still be for the prosecution to prove the man's guilt – but not by putting the woman on trial by bringing in irrelevant hints or details about her sexual history. Women want justice, but for this there is no need to undermine the rights of defendants. We are not in favour of double jeopardy or previous convictions and "other misconduct" being admissible.

The Review Team proposed to fetter the use of belief as a defence by testing whether the man took all reasonable steps to ensure that the woman consented, based on Canadian law. While this may prove useful in some cases, in Canada men have been acquitted because the victim is blamed for not refusing at an earlier stage. For example, an older man was acquitted of indecently assaulting an under-age girl in a cinema when his defence claimed that having put his hand on her knee, to which she did not object, he could then ignore her objections to his serious assault that followed.

The legal establishment claims that the belief clause has to remain because it upholds the principle of criminal intent, or "mens rea". Even without Morgan, the criminal intent appears in the very first sub-clause of the law, which defines rape as when a man has sex with a woman "who at the time does not consent to it," and "at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it." (Our emphasis.) What Morgan does by giving this further stress is to establish that his belief is more crucial than her consent.

In other words, her sexual history and not the facts of the case is decisive. In rape trials, the criminal intent principle has been distorted to mean that courts must uphold, and impose on survivors and juries, the perspective of a rapist. The Youth Justice & Criminal Evidence Act was supposed to protect women from being cross-examined about their sexual history. But while sexual history evidence was restricted if the man's defence was that the woman consented, these restrictions were removed if the defence was that he believed she consented. Women's concerns were raised in Parliament that this would inevitably increase the use of the belief defence. But they were overruled by Paul Boateng, the Home Office minister.

Rape victims were again betrayed when the Act took away a defendant's right to cross-examine the victim, but left intact the defence barrister's power to trash her, and then misrepresented this as the end of sexual history cross-examination.

The Command Paper is less than satisfactory on other grounds. Some measures presented as completely new, such as criminalising sex with someone with learning disabilities, are mere rewrites of crimes established since 1956. Though ditching the offensive words "mental defective", they keep people with disabilities in a separate category with considerations that invite discrimination. In the context of rape, discrimination means not to pursue prosecutions at all. As long as the Morgan principle exists, what remains central in court is whether the man thought she consented and whether she gave her consent ceases to matter.

Lisa Longstaff is a spokesperson for WAR (Women Against Rape), Crossroads Women's Centre, 230a Kentish Town Road, London NW5 2AB (tel: 020-7482 2496; fax: 020-7209 4761; e-mail: war@womenagainstrape.net)