In the 17th Century, the Lord Chief Justice Hale contributed two rather terrible myths about rape to the common law.
The first was that marriage is a contract assigning sexual consent, so that a husband could not be prosecuted for raping his wife.
The second was a comment on the supposed difficulty of proving the charge of rape. This became known as the cautionary rule and was read out to juries at the end of rape trials:
[I]t must be remembered that it [rape] is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent.
Both rules have been abolished in most common law jurisdictions, but they lasted on the books until surprisingly recently.
And while nobody these days would argue that rape in marriage should be legal, the cautionary rule lives on — in the culture of our legal system and intense media scrutiny of anyone who cries rape.
Geoff Lemon trots it out on Crikey in his defence of Peter Roebuck:
Apparently a reminder is due that allegations do not equal guilt, and that sexual impropriety is the easiest charge to make and the hardest to dispel.
The problem with the cautionary rule is that it is demonstrably false.
Rape and sexual assault are heavily under-reported. Where complaints are made, they suffer high rates of attrition at every stage, from the recording of the complaint, investigation by police, and the decision to proceed by public prosecutors. Victims of rape undergo brutal cross-examination and the conviction rate of contested trials is much lower than comparable crimes.
In truth, the opposite is true: it is difficult to charge and much easier to defend.
The reminder due is that we don’t know what happened between Peter Roebuck and his accuser. His death has left the waters murky, but that tells us nothing about the truth or otherwise of the allegations against him.
But one thing is crystal clear – it does nobody any good to repeat the specious idea that complaints of sexual assault, as a class, cannot be trusted.
