Rape law doesn’t work—by design.

In something like my sixth year in law school I took a two-unit subject, Advanced Legal Research, to write about options for reforming the criminal law against rape.  I failed it, not once, but twice. I got so depressed I couldn’t write. Not only does the law against rape not work, from a history written by Barbara Hanawalt I discovered it was more or less designed not to work.

Rape was first made a crime in the first Statute of Westminster — kind of the first codified criminal law — out of concerns that too many women were making appeals against rape.  An ‘appeal to the reeve’ was a form of private prosecution, although there was nothing private about it — ‘reeve’ was a hundred or so local worthies, all men, to whom she had to proclaim (announce) her rape pretty much as soon as it happened, evidenced by ‘torn clothes and effusion of blood’, and then to bring it before the next county court.

The crime was enacted into the Statute of Westminster in order to reduce the ability of women to appeal it.  Although rape is often described as a property crime — since marriage was one of the ways to make a rape complaint go away, there was concern that rape could be falsely appealed to secure a marriage — in this light it makes sense to view the criminalisation of rape as a strategy for maintaining public order.  The crime gave a woman forty days to appeal her rape, otherwise only the Crown could prosecute it, and then the sentence was up to two years’ imprisonment.

Clearly there was some kind of outcry, for ten years later, in 1285, the Statute of Westminster II prescribed a sentence of punishment in life and member — execution and/or punitive amputation (possibly castration).  But in response, Hanawalt suggests, court procedure seems to have developed to make it more or less impossible for a woman to secure a conviction.  She had to tell and retell her story at each point from the reeve to final appeal in exactly the same words, else she would be deemed a liar and subject to punishment herself.

And yet somehow by the seventeenth century we have the Lord Chief Justice Sir Matthew Hale pronouncing “rape…is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent”, and then that becoming part of the standard jury directions for rape trials in Australia.  This is a guy who believed in witchcraft but not the possibility of marital rape, and is yet esteemed one of the leading lights in the development of common law.

This is about as far as I’d got before I was unable to write for the rage I was feeling.  Didn’t even make it to the eighteenth century.  We have seven hundred years of a crime that was written expressly to restrict the ability of women to prosecute rape.  My home state, Victoria, is known as an innovator in rape law reform because it introduced jury directions that defined sexual consent as ‘free agreement’.  This was seen as some huge innovation, even though it left intact the elements of the crime, which said that what mattered was what the defendant believed about consent, not whether consent was actually present.

There has been some more recent fuckery in other jurisdictions about whether the belief was reasonable or not, i.e. did the defendant have evidence of consent or make enquiries.  But again, that simply invites the jury to substitute its own judgment for the defendant’s, when the judgment that matters is the victim’s.

One of the most depressing things was an article by two lifelong advocates for rape law reform who said frankly, if a friend or family member asked if it was worth making a rape complaint in their state (South Australia), they would have to say no.  Another author looked at the appalling conviction rate and concluded that certain juries seemed to be agreeing with the victim that she experienced rape, but feeling unable to find that, on the elements of the offence, the defendant was a rapist.

After I failed those two times I permanently gave up on wanting to become a practicing lawyer, and returned to working as a health educator in sexual and reproductive health, where there isn’t the need to bind up a sensible message in all the accumulated bullshit of seven hundred years of dysfunctional statute and common law.

But I remember wishing there was an intermediate offence of sexual assault, an alternative charge that could be pled along with rape, so that if a jury found itself in that situation — the impossibility-by-design of proving a rape charge — it would have some serious alternative to convict on.  That’s now one of the options under consideration in the recently announced rape law reform consultation being undertaken by the Department of Justice in Victoria.

3 thoughts on “Rape law doesn’t work—by design.

  1. As a transcriber for the courts, I deal with rape cases more often than I’d like. I have particular hatred for the cross-examination of the victim. Complainant evidence is confidential, so I’ll speak in generalities:

    - although counsel are discouraged from inquiring about the victim’s clothing, etc, they do it all the time. “You wore that shirt because you knew it would emphasise your breasts. You were wearing a short skirt. You wore a lot of make-up and jewellery.”
    - anything a victim posts online is fair game as “evidence” that she was up for it/is making it up. Even, to provide a fictional example, a LiveJournal account from a decade ago can be used to imply a “pattern of behaviour”;
    - relatedly, talking about rape culture online means you’re obviously a false accuser;

    I should say, not all defence counsel engage in this behaviour. But even with a polite and ethical barrister, the cross-examination process is dehumanising and traumatic. As kind as the barrister may be, s/he is still attempting to gaslight you.

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