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.

Advertisements

Easy to claim and hard to dispel: the cautionary rule lives on

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.