The Review of Sex Offences and Rape Law Reform: Another False Dawn?

Published date01 November 2001
Date01 November 2001
AuthorPhilip N. S. Rumney
DOIhttp://doi.org/10.1111/1468-2230.00358
REPORTS
The Review of Sex Offences and Rape Law Reform:
Another False Dawn?
Philip N.S. Rumney*
The offence of rape, as it is defined and enforced has been the subject of an
ongoing process of evaluation and reform for several decades and across numerous
jurisdictions. The latest contribution to this process has been the publication of
volumes 1 and 2 of the Home Office consultation document Setting the
Boundaries–Reforming the Law on Sex Offences.1This report results from the
deliberations of the Review of Sex Offences which was established to provide
recommendations ‘for clear and coherent offences that protect individuals,
especially children and the most vulnerable, from abuse and exploitation, and
enable abusers to be appropriately punished’.2Yet it has to be seriously doubted
whether the Review’s recommendations on the law of rape will significantly
address any of these objectives. Indeed, by focusing exclusively upon the revision
of the legal definition of rape, the Review was unable to examine what is arguably
the most important issue facing rape law today, that is, how that legal definition of
rape is interpreted and enforced by the criminal justice system. As with previous
law reform efforts that have focused upon issues of ‘black-letter’ law,3the
Review’s narrow focus only serves to obscure the practices of criminal justice
agencies that hinder the effective enforcement of the law in this area. As such, the
implicit impression given by the Review’s remit and recommendations is that such
problems can be resolved by limited revision of the substantive law.4
The purpose of this article is to examine the Review of Sex Offence’s
recommendations regarding the actus reus of rape, in particular, its proposals
concerning the definition of sexual intercourse and consent. In addition, this article
will consider whether the Review’s recommendations are likely to lead to any
significant improvement in the actual enforcement of rape law. It will also explain
why successful rape law reform will only come about when the reform process
ßThe Modern Law Review Limited 2001 (MLR 64:6, November). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.890
* Law Division, Sheffield Hallam University.
1 (London: Home Office, 2000). Hereinafter referred to as the ‘Review’.
2per the Home Secretary, Jack Straw: vol 1, i.
3 A detailed discussion of the nature of ‘black-letter’ law is outside the remit of this paper. However,
for the purposes of this paper I adopt a definition offered by Hutchinson who describes ‘black-
letterism’ as ‘an approach to law that claims to concentrate on narrow statements of what the law is
and eschews resort to any extra-doctrinal consideration of policy or context’: ‘Beyond Black-
Letterism: Ethics in Law and Legal Education’ (1999) 33 The Law Teacher 301, 302. Whilst the
Review clearly did have some regard to ‘extra-doctrinal’ issues such as the nature and impact of rape
and sexual assault, it was ultimately restricted by its remit to purely ‘black-letter’ reform proposals.
As a result, many fundamental contextual issues such as the attitudes and practices of criminal
justice professionals were ignored.
4 For discussion of such problems in the context of the abolition of the marital rape exemption, see:
Laird, ‘Reflections on RvR’ (1992) 55 MLR 386, 392. See also: Bumiller, ‘Rape as a Legal
Symbol: An Essay on Sexual Violence and Racism’ (1987) 42 University of Miami Law Review 75,
84 (arguing that in seeking changes to the treatment of rape complainants reformers ‘may have
oversimplified the problem and the solution’).
abandons a ‘black-letter’ approach and examines legal rules in the context of their
interpretation and enforcement.
The Review of Sex Offences in Context
Whilst the definition of rape has undergone gradual change over many centuries,5
the process of reform both at home and abroad has accelerated over the last three
decades,6largely due to the work of feminist campaigners who have challenged the
content and enforcement of rape law.7The general definition of rape in this country
was last considered by the Criminal Law Revision Committee (CLRC) which
published its recommendations in 1984.8The CLRC rejected any significant
reform of the definition of rape, refusing calls for the complete abolition of the
marital rape exemption9and the expansion of the actus reus of rape to include acts
other than penile-vaginal intercourse.10 The CLRC was subsequently criticised for
the use of ‘superficial’ reasoning and rape myths to justify its conclusions.11
Within ten years however, two of the CLRC’s central recommendations relating to
the law of rape were overturned. Firstly, the House of Lords in RvRabolished the
marital rape exemption,12 and in 1994 the actus reus of rape was expanded to
include non-consensual penile-anal intercourse.13
Despite these changes the definition of rape can still be characterised as
incoherent and defective for ‘its failure to acknowledge the gravity of other acts of
sexual violence and abuse which do not legally constitute rape’.14 Hall has made a
similar observation that the legal definition of rape ‘excludes a great deal of
behaviour which is remarkably similar to the act legally designated as rape and that
such exclusion appears to rest on no logical or justifiable grounds’.15 As a result of
its process of consultation the Review identified this as a specific problem.16 It also
found problems in the definition of consent which was ‘not clearly understood’,
5 For discussion see: Brownmiller, Against Our Will: Men, Women and Rape (Hammondsworth:
Penguin Books, 1975) ch 2.
6 There has been significant reform of the substantive definition of rape in Canada, Australia and
many American states. For discussion see: Searles and Berger, ‘The Current Status of Rape Reform
Legislation: An Examination of State Statutes’ (1987) 10 Women’s Rights Law Reporter 25;
Temkin, ‘Women, Rape and Law Reform’, in Tomaselli and Porter (eds) Rape (Oxford: Basil
Blackwell, 1986).
7 For discussion see: Berger, ‘Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom’
(1977) 77 Columbia Law Review 1 (noting the role of the women’s movement in responding to rape
and that ‘women have also played a key role in lobbying for reforms in the law of rape’); Spohn and
Horney, Rape Law Reform: A Grassroots Revolution and Its Impact (New York: Plenum Press,
1992).
8 Criminal Law Revision Committee, Fifteenth Report, Sexual Offences Cmnd 9213 (1984).
9ibid para 2.56
10 ibid paras 2.45–2.47
11 Wells, ‘Law Reform, Rape and Ideology’ (1985) 12 Journal of Law and Society 63, 66–73.
12 [1991] 3 WLR 767. Soon after, the Law Commission published its recommendation that the marital
exemption should be abolished: Law Commission, Rape Within Marriage Law Com No 205
(London: HMSO, 1992).
13 Criminal Justice and Public Order Act 1994 s 142. For discussion see: Rumney and Morgan-Taylor,
‘Recognizing the Male Victim: Gender Neutrality and the Law of Rape, Part One’ (1997) 26 Anglo-
American Law Review 198.
14 Bridgeman and Millns, Feminist Perspectives on Law (London: Sweet and Maxwell, 1998) 394.
15 n 77 below 68.
16 The Review summarised submissions it had received on this issue thus: ‘The law did not offer
appropriate protection against very serious assaults because the definition of rape as penile
penetration of the vagina and anus meant that other kinds of extremely serious penetrative assaults
could be prosecuted and sentenced as indecent assault only’: vol 1, para. 2.3.1.
November 2001] Rape Law Reform
ßThe Modern Law Review Limited 2001 891

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