Lecture 2 .

1. Lecture 2 . Defining Sexual Violence

2. Background • More Women worried about rape than any other crime (Simmons 2002). • All concepts and definitions contested. • Issue of what we count as sexual violence. Female circumcision? Sado-Masochism? • Note relativist arguments. • This leads to problems. • No single definition of what constitutes sexual violence. • Disagreements among feminists. • Not always ‘sexual’ , domestic violence included for some. • Sexual violence sometimes ranked in order of seriousness of offence. • A range of things can be included on this continuum of violence (Kelly and Radford 1988) • A spectrum of categories; Indecent exposure; touching, groping, fondling; stalking; sexual harassment; sexual assault, buggery, rape, and sexual murder (Leidig, 1992)

3. An inclusive definition • Kelly and Radford (1998) • 'Sexual violence includes any physical, visual, verbal or sexual act that is experienced by the woman or girl, at the time or later, as a threat, invasion or assault, that has the effect of hurting her or degrading her and/or takes away her ability to control intimate contact. (Kelly, 1988: 41)'

4. Problems • Not just between strangers. • Parents and children, husbands and wives, girlfriends and boyfriends, colleagues etc. • Inclusivity of term dilutes meaning. • Excludes other issues- virtual rape? (Kelly and Humphreys, 2000). • How inclusive should definitions be? • What about male victims? • Needs updating to take Sexual offences Act 2003 into account.

5. New Legal Definitions • Background • Major overhaul of the sexual offences legislation in England and Wales. (See Westmarland 2004) • Prior to this -1956 Sexual offences act. • A number of amendments made since the 1956- marital rape and male rape in 1994 Criminal Justice and Public Order Act. • Changes resulted in very confusing laws- many different Acts had to be accessed in order to decipher where the law stood on any given matter (Westmarland 2004). • A ‘patchwork quilt of provisions’ (Home Office, 2000, pg. iii). • Previous law and human rights issues. • Review process initiated in 1999 (the Sexual Offences Review). • Followed by a Sexual Offences Bill and Sexual Offences Act 2003, which came into force in May 2004.

6. The problem of Attrition • Feminist academics and activists have criticised rape law in England and Wales on a number of grounds. These include: • the difficulties in proving non-consent; • cross-examination; • rape myths; the use of sexual history evidence in court; • 1976 ruling in ‘Morgan v DDP[1976]’ that an ‘mistaken’ but ‘honest’ belief in consent should lead to an acquittal even if this belief in consent is not a ‘reasonable’ one. • High attrition rates. • (Some of this has led to a strengthening of the law on sexual offences).

7. The problem of Attrition • Many cases do not reach court in those that do the perpertrator may not be convicted. • High attrition rates, increasing over time. • Reported cases rising with convictions falling since records began. (See Lees and Gregory 1993: Harris and Grace, 1999: Lea, Lanvers and Shaw, 2003). • Ratio of rape convictions to reported rapes has steadily fallen from one in three in 1977 to one in 20 in 2002 (Kelly: 2004). • High rape attrition rate reflected across Europe (Kelly and Regan, 2001). • Kelly (2002) suggests that attrition may be even higher than this. • Such studies do not take into account rapes that are reported to but not recorded by the police, or any convictions that are overturned on appeal. • Cook (2004) suggests one in ten convicted rapists later have their convictions overturned or sentence reduced on appeal.

8. The reform process • Sex Offences Review (1999) aimed to achieve ‘protection, fairness and justice’ within the Home Office’s overall aim of creating a ‘safe, just and tolerant society’ (Home Office, 2000b). The review’s terms of reference were: • ‘To review the sex offences in the common and statute law of England and Wales, and make recommendations that will: • provide coherent and clear sex offences which protect individuals, especially children and the more vulnerable, from abuse and exploitation; • enable abusers to be appropriately punished. • be fair and non-discriminatory in accordance with the ECHR and Human Rights Act.’ • ( Source: Westmarland 2004)

9. The reform process • Home office report –existing law -‘archaic’, ‘incoherent’ and ‘discriminatory’. • Sexual Offences Bill was -January 2003 -House of Lords- amendments. • June 2003 Bill reviewed by a Home Affairs Committee. • July 2003 review published (House of Commons Home Affairs Committee, 2003). • The Sexual Offences Bill finally became the Sexual Offences Act 2003 with effect from May 2004. • This replaced the Sexual Offences Act 1956 and its various amendments. • The new Act represents the largest overhaul of sexual offences in over a century (Editorial, Criminal Law Review, 2003).

10. The Sexual Offences Act 2003 • To secure a conviction for rape -necessary to prove beyond reasonable doubt • That the defendant committed an act that meets the legal definition of rape • That the defendant knew that the victim was not consenting. • These are known as the actus reus (the guilty act) and the mens rea (the guilty mind, or criminal intent).

11. The Guilty Act- Actus Reus- And Rape Within Marriage • Within Sexual Offences Act 1956 Actus Reus defined as ‘unlawful sexual intercourse with a woman’ - amended in 1976 to ‘unlawful sexual intercourse with a woman without her consent’. • The 1990s saw two major changes relating to the actus reus of rape.

12. changes relating to the actus reus of rape. • 1991- rape within marriage became illegal within the common law system -placed into statute in the Criminal Justice and Public Order Act 1994 - when the word ‘unlawful’ was removed from the definition. • (It had previously been judged in common law that married women had no capability or authority to ‘not consent’) • Changes made within the 1994 CJPO- now a man could be a victim of rape and the actus reus of rape was amended to cover vaginal or anal intercourse against a woman or another man without their consent. • Although other parts of the Sexual Offences Act 1956 were revised between 1995 and 2003, the actus reus of rape retained its definition as in the Criminal Justice and Public Order Act 1994 until the new definition in the Sexual Offences Act 2003.

13. Sexual Offences Act 2003. • Sexual Offences Act 2003 -actus reus of rape -penile penetration of the vagina, anus or mouth of another person without their consent. • Definition of rape changed over nearly half a century from unlawful sexual intercourse with a woman to penile penetration of the vagina, anus or mouth of another person without their consent. • Sexual Offences Review suggested that other forms of penetration should be treated just as seriously as penile penetration of the vagina or anus. • (Home Office, 2000) ‘ forced oral sex is as horrible, as demeaning and as traumatising as other forms of penile penetration’ • Previously forced oral sex classed as indecent assault- maximum penalty of ten years imprisonment (maximum penalty for rape or attempted rape- life)

14. Victims, perpetrators and Gender specificity. • Rape remains a gender-specific offence with regard to the perpetrator. (Act requires a penis). • Gender-neutral offence with regard to the victim. (Males and females can be raped) • A new offence of assault by penetration

15. The Problem of Consent. • The second part of the actus reus relates to a lack of consent. • Three lines of defence used in rape cases; • that intercourse never took place, • that it took place but not by the accused • that it took place but that the victim consented to it or that the accused believed that the victim consented to it (Baird, 1999).

16. (Baird, 1999). • Baird (1999) -few rape cases are ‘whodunnits’ • defence that sexual intercourse never took place is rare. • Developments in DNA testing (Lees, 1996). • The issue of consent central to many rape defence arguments focus on. • ‘Review of sexual offences’ aimed to ‘clarify the law on consent’. • Prosecution must prove the absence of consent (almost as if victim is guilty -See Lees 1996) • Often no direct witnesses- difficult to validate either person’s statement. • Sexual Offences Act 2003 -definies consent as ‘a person consents if he agrees by choice, and has the freedom and capacity to make that choice’ (section 74) • Still significant problems around the issue of consent.

17. The Guilty Mind. The mens rea. • An individual should not be punished for an act that they did not know they were committing at the time of the act. • Feminist activist campaigns for mistaken belief clause to be abolished. • Sexual Offences Act 2003 defined the mens rea of rape as if ‘A does not reasonably believe that B consents’ (section 1c).

18. Rape Law reform • The reformed rape law, as of May 2004 can thereby be summarised as if ‘A’ intentionally penetrates the vagina, anus or mouth of ‘B’ with his penis, and if ‘B’ does not consent to the penetration and ‘A’ does not reasonably believe that ‘B’ consents (paraphrased from section 1 of the Sexual Offences Act 2003). (Westmarland 2004)

19. Some Problems and Questions. • It is too soon to know how the 2003 Act will be interpreted • Although consent has now been defined in statute, this does not solve many of the issues relating to consent. • Law still equates passivity or non-resistance with consent (Henning, 1997) (especially when no evidence of physical violence or if victim had consented previously (Harris and Weiss, 1995). • The re-wording of the mens rea so that the belief in consent must be reasonable is a significant step forwards, however it is too early to know how ‘reasonable’ will be interpreted in case law (i.e. reasonable to who? under what circumstances?) (Westmarland 2004)

20. Profiling the Offender. • Most research focuses on rape of women by men • high numbers in this category (Caputi, 1987; Griffin, 1979) • Increasing emphasis on rape by 'partners' or ex-partners • Male on Male rape (Brownmiller, 1975; Russell, 1984; Struckerman-Johnson, 1992) • Female offenders (Russell, 1984; Johnson and Shrier, 1987)

21. Reasons for the relative lack of literature and research on sexual violence against men: • 1. Undereporting • 2. Poor conviction rates • 3 Refusal to recognise the existence of such offences • 4 Issue of neglect in some areas of feminist research

22. Women Abusers- An incomplete picture. • focus on women as child abusers. • Research indicate that women sexually abuse children in collaboration with men • Unlikely to be stranger attacks

23. Prevalence of Sexual Violence • Measures over time difficult as definitions and categories change. • Home Office Criminal Statistics have traditionally; • only used a narrow legal definition of rape; • only contain reported rape • prior to the 1994 CJPO male rape not included, • many reported rapes classified- assault other then rape or categorised as ‘no crime’/ insufficient evidence,

24. Official statistics • Official statistics often tell us more about the reporting of Sexual Violence and the way that the data is collected than they do about prevalence. • 1981-1991 reported rape rose by 14.2% per year. • 1981 their were 1100 reported rapes in England and Wales • 4000 in 1991. • By 2000 -7132 rapes of females (Russell 1984) • This reflects changes in way data is collected and categories constructed- still not a full picture.

25. Survey Statistics • Hall - 40% of those women had suffered rape, attempted rape, or other types of sexual assault (Hall. 1985) • 2 YearReportsConvictionsConviction Rate19771,01532432%19872,47144518%19965,75957310% • Source: Home Office Statistics quoted in Kelly (1999)

26. Problems with the data. • Many victims ‘invisible’ in statistics. • Difficult to know actual numbers due to under-reporting. • Stranger rape not that common. • Most assailants known to victim (more on this in coming weeks). • Figures suggested by Painter (1991) probably closer to actual numbers. • Victims ‘hard to reach’.

27. Problems with the data. • Hester, Radford and Kelly (1996) explores the narratives of women who have experienced violence whilst working as prostitutes. • Extent of Sexual Violence against prostitutes staggering (O’Neill 1992) • True extent of marital rape, sexual violence against minors and male rape unknown. • Sexual assault and stigma. • Male rape in prisons difficult to research, more research in US.

28. Next Week • Looking at explanations • Different explanations according to context. • There may be economic, ideological, political, psychosocial and socio-cultural reasons for these atrocities. • Horrific levels of sexual violence in some countries where there is armed conflict. • Different explanation for abuse of women, men and children. • No universalisable explanations but maybe some commonalities.