TOWARDS A MODERN LAW OF RAPE
| Date | 01 July 1982 |
| Published date | 01 July 1982 |
| Author | Jennifer Temkin |
| DOI | http://doi.org/10.1111/j.1468-2230.1982.tb02487.x |
TOWARDS
A
MODERN
LAW
OF
RAPE
THE
law of rape has been widely criticised on the ground that it fails
to protect women, is biased against them and rests on derogatory
assumptions about them. There is a widespread belief that the treat-
ment of rape victims by the legal process discourages them from
reporting crimes and that the rules of evidence which apply in rape
cases permit rapists to avoid conviction.’ The purpose of this article
is to consider the recent proposals of the Criminal Law Revision
Committee on the law of rape and to assess the extent to which they
are capable
of
assuaging the current controversy.
It is on a note of complacency that the Committee embarks upon
its deliberations. Concern about the law, it appears to suggest, derives
from misleading press reports and misunderstanding by the public
of
D.P.P.
v.
It
implies that the Sexual Offences Act
1976
dealt with most
of
the problems. Hence the Committee perceives its
task as one of dealing with certain residual matters which “need
scrutiny even though they seldom give rise
to
difficulties.”
‘
This
scrutiny proceeds with the consideration of seven issues concerning
the law
of
rape and is followed by a discussion of suggestions for
strengthening the law. In this article it is proposed
first
to
comment
upon the approach
of
the Committee to its subject and then to con-
sider in detail its views and
recommendation^.^
The
Committee’s
Approach
to
Reform
of
the
Law
of
Rape
In its recent review of sexual offences, the Law Reform Commission
of
Canada was instructed to inquire into the nature
of
the crime of rape
and also
to
evolve guiding principles for the reformulation of the 1aw.O
Its conclusion that rape
is
a crime
of
aggression rather than a sexual
crime’ will be queried by some, but the Commission cannot be
1
See,
e.g.
S.
Brownmiller,
Against
Our
Will-Men, Women
and
Rape
(1976);
Rape Crisls Centre, Annual Reports 1977 onwards; C. Mitra.
“
For she has no right
or
power to refuse her consent
’*
[1979] Crim.L.R. 558; C. Smart,
Women.
Crime
and
Criminology
(1976); C.
E.
Le Grand,
‘‘
Rape and Rape Laws: Sexism in Society
and Law
”
(1973) 61 California L.R. 919.
2 Criminal Law Revision Committee,
Working Paper
on
Sexual Oflences,
October
1980, referred to hereinafter by paragraph numbers only.
*
119761 A.C. 182. This case established that an honest but unreasonable mistake
as
to the victim’s consent is
a
defence to rape.
‘1
Para. 18.
6
Two
of
the Committee’s recommendations are relatively uncontroversial and
will not
be
considered here,
viz.
that boys under 14 should no longer be presumed
to
be incapable
of
sexual intercourse and that
a
new statutory provision of aiding
and abetting
a
man to have sexual Intercourse with a woman without her consent
be introduced to overcome the conceptual difficulties inherent in the decision
in
Cogan
v.
Leak
119761
2
Q.B.
217.
0
Law
Reform
Commission
of
Canada,
Working
Paper
No.
22,
Sexual Offences.
1978; Report
No.
10,
Sexual Offences
(1978).
7
Law Reform Commission of Canada, Report
No.
10,
Sexual Oflences
(1978).
p. 12. But see Criminal Law and Penal Methods Reform Committee
of
South
Australia, Special Report,
Rape
and
Other Sexual Oflences
(1976). p. 8.
399
400
THE
MODERN
LAW
REVIEW
[Vol.
45
faulted for posing the question. Similarly whatever view
is
taken of
the Commission’s recommendation that reform of the law of rape
be based
on
the fundamental principle
of
protecting the integrity of
the person,8 an attempt to formulate such
a
principle, is, it
is
sub-
mitted, one that repays the effort involved.
The Criminal Law Revision Committee proceeds differently.
It
formulates seven questions but fails to consider what standards
should be applied, what principles should govern, what aims should
be pursued in responding to them.
No
framework is provided. The
questions are raised and the Committee proceeds forthwith to answer
them
as
if
common sense were all that was required. It may be that
the Committee was right to eschew self-fulfilling formulae of the
kind favoured by
J.
S.
Mill which
“
implicitly presuppose what they
set out
to
justify”.9 On the other hand some consideration and
articulation of the objectives to be pursued in formulating
a
modern
law
of
rape might have sharpened the focus of the Committee and
assisted it
to
reach consistent conclusions.
Objectives
of
the
IAW
of
Rape
It
has been averred by many writers on the subject that the law of
rape did not in the past exist for the protection of women and does
not do
so
today.1°
In
the past, it has been stated, the law
of
rape
was there primarily to protect property rights.
“
The essence
of
the
crime was theft of another man’s property.”
l1
Redress lay in financial
compensation. Even in the thirteenth century when according to
Bracton, penal sanctions for rape imposed by the king’s court were
supposed to have supplanted pecuniary compensation, in practice
penal sanctions were virtually never carried out. Financial compen-
station continued to be paid and the judges colluded in the practice.lz
This tends to confirm how entrenched was the view that it was
primarily an economic loss which was sustained when a rape took
place. Today, it has been claimed, the purpose of rape laws is the
protection of male interests. They
“
help protect the male from any
decrease in the value
of
his sexual possession which results from
forcible violation.”
l3
Certainly the fact that there is no liability for
rape by a husband
of
his wife suggests that the purpose of the law is
not unequivocally the protection of
a
female’s right to her bodily
integrity. Yet this
is
what
it
should be. Given man’s greater physical
8
Report
No.
10,
p.
6.
The Commission formulated three fundamental principles
for
the reform
of
sexual offences. The remaining two have less bearing on the law
of
rape.
S
A.
Ross,
On
Guilt,
Punishment and Responsibility
(1979,
p.
52.
10
See especially Le Grand,
Ioc. cit. supra,
note
1.
11
Mitra
119791
Crim.L.R. at p.
560.
12
See
J.
M.
Kaye, “The Beginnings-A General Survey
of
Criminal Law and
Justice
Down
to
1.500
”
[
1977) Crim.L.R.
4,
8.
18
Le
Grand,
loc. cit.
at p.
924.
For
the idea that rape
is
an attack on another
man’s possession, see also Eldridge Cleaver,
Soul
on
Ice
(1971), p.
26:
“Rape was
an insurrectibnary act.
It
delighted me that
I
was trampling upon the white man’s
law
. . .
and that
I
was defiling his women.”
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