Review: Rape and the Legal Process
| Date | 01 July 2003 |
| Author | Louise Ellison |
| Published date | 01 July 2003 |
| DOI | 10.1177/136571270300700306 |
| Subject Matter | Review |
REVIEWS
Jennifer Temkin
RAPE
AND
THE LEGAL PROCESS
Oxford: Oxford University Press (2nd edn, 2002) 428pp, hb
€60,
pb
f23
The first edition of
Rape and the Legal Process
was published in
1987.
In the
intervening years, far-reaching reforms bearing directly
or
indirectly on the
conduct of rape trials have been introduced, yet much that characterises the
prosecution of rape allegations has remained depressingly unchanged. Both
realities underscore the timeliness of a second edition. The book’s central aim,
in Temkin’s
own
words, is ‘to examine the difficulties entailed in regulating rape
and to assess how they might best be overcome’. The book is divided into
six
chapters, with Chapters
2
and
3
focusing on implemented and proposed changes
to the substantive law of rape. The evidential and procedural matters addressed
in Chapters
4
and
5
are the principal focus of this review.
Chapter
1
sets the scene, charting the rate of attrition in rape cases and providing
a valuable overview of historical, contemporary and comparative statistical data
on reporting (and non-reporting), prosecutions and convictions. Despite a rise in
recorded rapes, Temkin describes how the prosecution rate for rape has dropped
dramatically in recent years and how the overall conviction rate stands at
approximately
9
per cent.
Chapters
2
and
3
provide an impressively comprehensive examination of the
definition of rape and wide-ranging proposals for reform. Domestic and
comparative material is skilfully employed to demonstrate how the criminal
law as it relates to sexual offences not only lacks consistency and coherence
but also fails fully to articulate issues of autonomy and choice. The definitions
of five key elements are examined in turn: sexual intercourse; unlawful; with
a man
or
woman; without consent; and
mens
rea.
Emergent themes include
the increasing acceptance of gender neutrality as a governing principle in
the context of sexual offences, the recognition of marital rape, moves towards
a definition of consent conceived in terms of ‘free agreement’, and
reassessment of the
Morgan
defence (currently permitting an accused to rely on
his genuine but unreasonable belief in consent). Implementing proposals
210
THE INTERNATIONAL JOURNAL OF EVlDENCE
&
PROOF
(2003)
7
E&P
210-219
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