The campaign to make rape law more victim-friendly is doing neither justice nor women any favours, says Sally Millard
Rape law on trial
The momentum for the reform of Britain's rape laws is growing. An Early Day Motion submitted to the House of Commons in June calls for sweeping changes to court procedures and there are demands for the creation of a new offence to deal with 'date rape'. The EDM has already been signed by over 100 MPs, and Home Secretary Jack Straw has made clear his commitment to overhauling the existing legal process.
Those demanding reform argue that rape is different from any other physical assault. They insist that it is a uniquely horrific crime for the victim, often leaving women emotionally scarred and traumatised. As a consequence, they say women who have been raped need special treatment from the police and criminal justice system. The reforms being proposed are all framed with this in mind. They are designed to make life easier for the main prosecution witness - the victim of the alleged rape - and by implication more difficult for the defendant.
One of the main charges levelled is that the experience of the trial for the complainant is like a 'second rape'. As Olive Braiden, director of the Dublin Rape Crisis Centre and a member of the newly launched Campaign to End Rape, argued recently: 'A trial for rape, in the experience of many victims, is something not very different; a second ordeal, replicating and often intensifying the trauma of the original abuse.' (from a paper given at the Rape and the Criminal Justice System Conference, 14 June 1997).
The most popular reforms under consideration are those which limit the ability of the accused to put forward a defence. These include proposals to restrict multiple cross-examination of the victim in cases where there is more than one defendant, and to prevent the accused rapist from conducting his own defence at trial. Both of these proposals follow high-profile rape trials which seem to confirm the view that the complainant in a rape trial has to put up with too much. In particular, the case of Julia Mason, cross-examined by her attacker Ralston Edwards for six days, is highlighted to illustrate the need for reform.
We can all sympathise with women like Julia Mason. But denying the defendant the right properly to cross-examine the main witness to the alleged crime sets a dangerous precedent. It needs to be remembered that, as with any other trials, rape trials have more far-reaching consequences for the defendant than they do for the complainant. The outcome of the trial will determine whether the defendant walks out a free man, or is given a prison sentence, now mandatory in rape cases.
It is fundamental to the principles of justice that somebody accused of a crime should be able to contest the allegations against them and test the evidence used to indict them. In cases of multiple rape, each of the accused needs to be able to put forward a separate defence, even if this means that the alleged victim may have to answer the same questions more than once. It may be that not all of the individuals accused were involved in the crime, and a group defence would prevent this from being properly considered by the jury.
Similarly, justice demands that the defendant should be able to conduct an in-person defence. This is particularly important for individuals accused of rape. Because of the way that rape has been singled out as a uniquely horrific crime for the victim, some lawyers now refuse to act for the defence in a rape trial. Sarah Maguire, founding member of the Lawyers' International Forum for Women's Human Rights, is now famous for her refusal to have anything to do with somebody accused of rape, despite the fact that they have been convicted of nothing. And rather than being attacked for undermining justice, her stance has been welcomed as a step forward for women.
As far as the Campaign to End Rape and others on the reform bandwagon are concerned, the defendant's rights are fair game, if undermining those rights encourages more women to report rape and gives them an easier time at court.
But are these reforms really so good for women? They are indicative of a trend to present women as victims, somehow unable to cope and in need of special protection and assistance. This does women no favours. If it is accepted that we cannot look after ourselves at a trial because we are far too traumatised, then it is surely only a small step to say that we cannot look after ourselves at all in the big bad world outside.
Experience suggests that most of us can cope quite adequately, with a rape trial or anything else. As Julia Mason said after Ralston Edwards had put her through the mill, 'if this was his way of trying to frighten me off, it wasn't going to work. It only strengthened my conviction that nothing on Earth was going to stop me seeing him go to jail' (Sunday Times, 25 August 1996).
But, for those demanding reform, that we do cope is of little importance. Their belief in the unique qualities of rape as a particularly traumatic crime, leads them to assume that women who suffer it must need special protection.
In fact, it would be far better for everybody if, rather than being singled out for special attention, rape was treated like any other assault. After all, as far as physical injury goes, being raped leaves less scars than being slashed with a knife. Rape is singled out as special not because of the physical damage, but because of the psychological scars the victims are said to bear. The irony is that, the more rape is treated as a special type of crime with a unique moral stigma attached, the more likely women are to feel traumatised by it. An atmosphere is created such that, if a woman does not appear distraught enough from the experience, she is likely to be treated as if there is something wrong with her and told that she must be in denial until she does submit to having her emotions interrogated by the counselling and victim support industry.
Increasingly, rape is no longer even discussed as a physical assault. One of the most radical reforms being put forward is to create a new offence of 'date rape', carrying a maximum five year prison sentence.
Motivating this new offence, Jill Saward, the Ealing vicarage rape victim who is also one of the main movers behind the Early Day Motion, said it would 'deal with all the grey areas where maybe a woman said "no" but everything else including the mood music were saying "yes". It would deal with those cases where consent had not been obtained, but where the sexual act was not premeditated and was not violent' (Times, 14 June 1997).
In other words, it would deal with all those cases where there had not actually been a rape. As the law stands, the prosecution in rape cases has to prove, beyond all reasonable doubt, that the complainant did not consent to sex or that the defendant was reckless in obtaining consent - in short, that there was active resistance by the alleged victim. Under these new proposals, resistance would no longer be an issue.
The current law does a reasonable job of reflecting our everyday relationships. It rightly carries the assumption that most of us do not wait for the word 'yes' before we make a sexual move. We become carried away with the music, mood and passion of the moment. However, if Saward is successful in promoting her new law, all this will change. Sex without actual consent will potentially become an act of assault, of date rape.
The consequence of such a law change will be to denigrate the experience of those women who have been at the receiving end of a violent sexual assault, by putting such attacks on a par with a regrettable drink-fuelled fling. At the same time it will degrade our sexual relationships, turning them all into potential rapes.
There is a clear attempt being made to use the law to impose a new moral code in the bedroom. No more spontaneity or romance; if we want to be sure that the sex is consenting, we would be advised to get a form signed in triplicate (and preferably witnessed by Jill Saward) in advance of the encounter.
A practical effect of the proposed new law is that the burden of proof in a rape case would shift from the prosecution to the defence. The defendant would have to prove that he obtained a positive 'yes' in order for the encounter not to be legally defined as rape. A legal precedent will be set which undermines the basic assumption that we are innocent until proven guilty by the prosecution.
In the past, feminist campaigns argued that if women say no, we mean no. But the proposed new law implies that we cannot even communicate effectively. If we say nothing, we might actually mean no, and if we want to say no, we might be unable to make this understood. So we need more law to help us little women out.
Those of us who prefer to be treated as capable adults, rather than as emotional wrecks in need of special guidance, need to ensure that the changes to the rape laws do not get introduced without a proper debate about all of the consequences.
Amor and Psyche, Edvard Munch, 1907
Reproduced from LM issue 103, September 1997