New rape law for all

UK lawmakers are set to introduce sweeping reforms to improve the abysmal rape conviction rate. Phil Simms finds out how this could affect everyone.

Ministers are finalising changes to UK rape laws to allow women who are too drunk to consent to sex to be given legal protection for the first time. Drugged drinks in so-called 'date rape' cases have made the news and greatly raised the public profile of the issue.

In future,  "a complainant will not have had the capacity to agree by choice, where their understanding and knowledge were so limited as a result of alcohol abuse, that they were not in a position to decide whether or not to agree," according to a Home Office statement.

With fewer than six per cent of rape allegations ending in a criminal conviction, ministers are keen to introduce reforms to improve the rape conviction rate and boost public confidence in the legal system. Currently, UK law states that an intoxicated woman is able to give consent as long as she is still conscious. Alcohol consumption is a major impediment to the successful prosecution of a rapist and thus is a point of constant debate.

Jennifer Drew, a leading member of Truth About Rape, says:  'The proposed and existing laws are still skewed in favour of men. Women rape survivors are still subjected to embedded rape myths wherein if a female rape survivor has not physically resisted her male attacker, suffered severe physical injuries or ensured that a witness was present when she told the male rapist she was not consenting, then the woman rape survivor is presumed to be an innate and incorrigible liar."

But 'Louise', representative of Rape Crisis, counters:  " In our society there is little debate about why a man would want to have sex with a woman who is incapable of knowing what is going on. We sort of expect that men will have sex with anyone that they can. I think that we need to give men much more credit than that. A clearer definition of consent would help everyone. And this law is not about protecting victims of rape so much as stopping many rapes taking place and hopefully ensuring that more rapists get convicted."

So, when has a woman drunk so much that she is no longer capable of giving valid consent to sex? The legal definition of capacity to consent to sexual intercourse will now mean that, if a woman is drunk she is incapable of consent, and thus a man who sleeps with her may be charged with rape. What are the implications of this new law for men?

Warren Blackwell, a married man with two children, was jailed for five years in 1999 for a violent sex attack at a New Year's Eve Party in 1998. He was later cleared in September 2006 at the Court of Appeal. It was found that the conviction was  'unsafe' when it came to light that the complainant had an  'ability to lie' and had a history of false rape accusations. Current laws that protect a victims' anonymity means that judges are powerless to name her. There was no forensic evidence against Blackwell and he had no previous convictions.

 "These proposed reforms to the UK laws are flawed," he says.  "There needs to be a clearer definition on what constitutes consent to rape. This can lead to sexual relationships in otherwise healthy marriages breaking down, if the couple have been to a party, or simply had a few drinks  — the woman would like to have sex with her husband but he declines because she is drunk and he's scared he could be accused of rape.  "

He added: "One can argue that in a good relationship, the chances of the husband being accused of rape is nil, but in somewhat more volatile relationships the opportunity would definitely be there for the woman to use it against the husband, even if to then retract the allegation."

The fact is everyone has a different tolerance to alcohol. Clearly a woman who is falling about cannot give valid consent; but another who had sipped one glass of wine probably could. How can you put into words the point at which someone crosses the line between having the capacity to consent to sex and someone lacking it? How are men supposed to determine that distinction?

According to Louise, of Rape Crisis, the definition of capacity to consent needs to be properly set out so men can understand:  "There is an assumption in the law that makes men out to have no sense of responsibility or any integrity. What the current situation does is assume that men are victims of their sexual urges and have no moral sense of right and wrong. I think that this is unfairly representing men and men's attitudes towards women."

She added:  "If a man took  £10 from your wallet when you were drunk would you say that he had stolen from you? Could he argue that you were too drunk to say 'no' so he assumed it was OK? And what has more impact, having sex with someone or losing  £10? If we were all clear that a woman's body is not freely available for anyone that happens to take a fancy to it but is something that a woman has control over and must consciously agree to participate in any sexual activity then we might develop a more effective response to sexual violence."

The new developments, as well as granting victims of rape and other sexual offences anonymity, have been aimed at persuading women to report rape. Ministers have ruled out lowering the burden of proof for convictions, opting instead to introduce a range of measures designed to assemble the strongest possible case for prosecutors. The controversial move is strongly opposed by judges, who believe it should be left to a jury to decide whether an alleged victim was in a fit state to agree to intercourse.

Among other changes to be unveiled this month is the use of video screens in court showing the first interview of a rape victim with the police, however the cross-examination about previous sexual history in court has been banned. Further steps, including an alleged attacker's previous sexual convictions being discussed before the jury, and hearsay evidence in which the victim told family or friends about an attack - but not police - could also be permitted.

The government also believes it is necessary to develop measures for dealing with rape victims with mental- health problems, as well as fresh methods of rehabilitating convicted sex offenders to stop them re-offending.

* See also, BBC accused of  'trivialising' rape, The-Latest, General News section.