The Rape of a Label Why it Would Be Wrong to Follow Canada in Having a Single Offence of Unlawful Sexual Assault

Date01 November 2004
DOI10.1350/jcla.68.6.533.54144
AuthorDamian Warburton
Published date01 November 2004
Subject MatterArticle
Standing Document..Contents .. Page1 The Rape of a Label
Why It would Be Wrong to Follow
Canada in Having a Single
Offence of Unlawful Sexual
Assault
Damian Warburton*
Abstract
With the enactment of the Sexual Offences Act 2003, the UK has
just had its biggest shake-up of the existing law on sexual offences. Rape
has been widened to include oral sex, a new offence of assault by penetra-
tion has been created, and what was indecent assault has been renamed
sexual assault. Twenty-one years ago the Canadians did away altogether
with the legal term of rape and created an all-encompassing offence of
sexual assault.
While the UK is experiencing an all-time low in securing convictions
for rape, this article asks what can be done to reverse this. Could doing
away with the label of rape make it easier to obtain a conviction in rape
trials? Perhaps reversing the burden of proof, or tightening up the require-
ments for obtaining consent, or tackling the biggest new phenomenon in
sexual offences, date rape, is the way forward.
What we call something may not seem all that important, but this
article aims to show that the social stigma attached to the word rape is as
important as the sentence itself.
A man posing as a Catholic priest almost murdered and then brutally
sexually assaulted a woman in Edinburgh, yet as no sexual intercourse
had taken place he could not at the time be labelled a rapist.1 Conversely,
in Kaitamaki v The Queen2 a man was convicted of rape when he
continued with what had been consensual sexual intercourse, after the
consent was withdrawn.
Clearly, these are examples of offences at opposing ends of the
spectrum, and up until 2003 the way that the law described the re-
spective actions was arguably less than a true reflection of their severity.
This is not intended to belittle these crimes. Indeed, rape and (what was
previously known as) indecent assault are very serious crimes. Rape is
perhaps ranked in the top three worst crimes that an individual can
commit against another, along with murder and the extreme violence
that constitutes grievous bodily harm. Sexual (indecent) assault is a
much wider-ranging offence, covering everything from the simple
touching of another person in a sexual manner, to the extreme levels of
violence that incorporate a sexual theme, as occurred in the first exam-
ple. However, while the boundary of what was and was not rape was
* LLB (Hons), LLM. Crime Decision-Maker, Avon and Somerset Constabulary.
1 ‘When the Law Fails Women’, The Times (28 December 1992). For the leading
English cases on sentencing serious indecent assaults, see R v Sheen (1987) 9 Cr App
R (S) 164 and R v Cook (1988) 10 Cr App R (S) 42.
2 [1985] AC 147; see also Cooper [1994] Crim LR 531.
533

The Journal of Criminal Law
never in any doubt, that it was an acceptable arrangement finds little
support.
The Sexual Offences Act 2003, which came into force in May 2004,
has redefined the boundaries of rape. It has created a new middle-
ground offence of assault by penetration and renamed indecent assault as
sexual assault, leaving it as before to take care of the lesser offences.
Nevertheless, not everyone will be satisfied and some would have the
UK follow the example of Canada in codifying all these offences under
one heading.
In 1983 the Canadian Parliament made the radical move of abolishing
the former offences of rape and indecent assault, replacing them with a
new offence of sexual assault, albeit with three levels of severity.3 It has
been said that ‘[the Canadian] Parliament’s intent was to declare sex-
ually aggressive behaviour to be a species of assault rather than a type of
sexual misconduct’.4 However, in doing so, this author believes that the
gravity previously attached to a conviction for rape has been under-
mined and should not be followed in the UK. This article will discuss the
particular offences and how they operate, in order to show that such a
change would only be regressive.
Are there any gaps in the law?
Until the acceleration of reforms of the last decade, that there existed
some major shortfalls in the scope and application of the law on sexual
offences is without question. A very narrow first definition of rape is
attributed to Sir Matthew Hale, when, in the 17th century he stated that
‘Rape consists in having unlawful sexual intercourse with a women
without her consent, by force, fear or fraud’.5 It is of note that reliance
on establishing any ‘force, fear or fraud’, and a need for the encounter to
be ‘unlawful’ have both passed into history,6 and all that is required
today is for the prosecution to prove that the victim did not consent to
the act, no matter what the reason for its absence.7
The current law extends to a much broader scope of sexual attack
than that which Hale described:
(1) A person (A) commits rape if:
(a) he intentionally penetrates the vagina, anus or mouth of an-
other person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
3 Sexual assault simpliciter (Criminal Code, s. 271), sexual assault causing bodily
harm (Criminal Code, s. 272) and aggravated sexual assault (Criminal Code, s.
273).
4 H. Stewert, The Centrality of the Act Requirements for Criminal Attempts (University of
Toronto, 2001) paras 410–411 (emphasis added). See also H. Stewert, ‘Symposium:
The Moral Limits of the Criminal Law’, Buffalo Criminal Law Review 47, n. 68
(2001).
5 J. Biebel, ‘I Thought She Said Yes: Sexual Assault in England and America’, Suffolk
Transnational Law Review 167 (1995).
6 See J. Smith and B. Hogan, Criminal Law, 10th edn (Butterworths: London, 2002)
468.
7 R v Larter [1995] Crim LR 75.
534

The Rape of a Label
(2) Whether a belief is reasonable is to be determined having regard to
all the circumstances including any steps A has taken to ascertain whether
B consents.8
For the purposes of the Act, sexual intercourse involves the slightest
penetration and does not require ejaculation;9 since 1994 the law has
operated in respect of offences committed upon a man or a woman10
and, overturning centuries of common law, case law and statutory
definitions it is of much significance that rape has now been extended to
include oral sex.11 The legislators are finally to be applauded for this,
since a person forced to perform fellatio on an assailant may suffer
degradation equal, or even greater than, an assault involving other
forms of forced penile penetration.
Previously, with the exception of intercourse, all unwelcome sexual
touching was merely an indecent assault. The unwanted penetration of
a victim with other body parts or inanimate objects could involve
considerable violence and would inevitably be highly traumatic. How-
ever, the chasm between the penile...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT