Rape (Consent) (Hansard, 16 July 2002)

§ Ms Julia Drown (South Swindon)

I beg to move, That leave be given to bring in a Bill to amend the law relating to consent in the crime of rape so as to provide that consent shall require the free agreement of the parties involved, that the parties take reasonable steps to ensure that consent has been given, and that the giving of consent on one occasion shall lead to no presumption about the giving of consent on any further occasion; and for related purposes. It is clear to anyone who has studied this subject that every year hundreds of rapists walk free from our courts. The victims are generally women, but a significant proportion of those in reported cases are men, and the conviction rate is only a tiny fraction of all rapes that occur. Only 10 per cent. of rapes are reported and, of those, 7 per cent. result in a conviction. So less than 1 per cent. of all rapists are punished for their crime. This abysmally low level of conviction means that we are failing the victims of rape.

These conviction rates and the low sentences often handed out discourage rape victims from bringing their attacker to court. Rape victims say that they felt that it was they, rather than the accused, who was on trial. Despite the progress made by the Government in the Youth Justice and Criminal Evidence Act 1999, many rape victims are still humiliated in court, particularly when irrelevant sexual history is paraded before the court. The 1999 Act set out to address these issues. As a result, rape victims can no longer be cross-examined by the accused. Victims can be screened from the accused or give evidence on a video link, thus minimising the potential for intimidation in court by the accused.

The 1999 Act also intended to limit sexual history being brought into cases. However, as women's organisations and I warned at the time, because the defence of an honest, even if unreasonable, belief in consent was left in law, many rapists have been able to walk free. Where the defence is that the accused believed that the victim consented, if the jury accept that he might, however irrationally and crazily, have believed that there was consent, they have to acquit. That defence of honest but unreasonable belief in consent also leaves a loophole for sexual history to be brought into court, since the safeguards to protect complainants in the 1999 Act do not apply to the defence of honest belief in consent.

It is well known at the criminal Bar that if claims about a woman's previous sexual history are brought up in court, the woman is likely to be humiliated and undermined and the calibre of her evidence is damaged. Canadian research shows that the jury's belief in the guilt of the accused diminishes in proportion to such claims, even if they are made up. We are expecting research to be published here on the sexual history protections that have been provided by sections 41 to 43 of the 1999 Act, but there is strong anecdotal evidence to suggest that protections have been undermined because the defence of belief in consent is run more often now to make use of the loophole.

The Government are aware that action is needed. Their sex offences review recommended a change in the law on consent in July 2000. It is abundantly clear that that is needed. The current definition of consent lets victims down. It is simply unacceptable in the 21st century that 175 defence counsels can say that a woman or man shouting, "No, no, no", should be disregarded and that, in fact, that person means "Yes." No means no. For that reason, we need to write into law that in cases where the victim is saying no, if the defendant is to use the defence of belief in consent, they have to be able to tell the jury what reasonable steps they took to ensure that there was free agreement to sex.

The Bill follows the model used in Canada—the system that was introduced there a decade ago. It would amend the Sexual Offences (Amendment) Act 1976 to define consent as involving free agreement between the people involved. Understood in that way, consent places a responsibility on people, where there is any doubt, to take reasonable steps to ensure that there is free agreement. If people having sex have not freely agreed to do so, that is rape, whether it is in the marital bed of 20 years, at a wild Saturday night party, or involves a prostitute being attacked in the street.

The Bill includes a non-exhaustive list of situations where free agreement could not be made. Those include: where a person submits or is unable to resist because of force or fear of force, or because of fear of serious harm to themselves or another person; where a person was asleep, unconscious or too affected by alcohol or drugs to give free agreement; where a person did not understand the nature of the act; or, where agreement is expressed by a third party, not the victim.

Some people have suggested that changing the law will lead to more false claims. There is no evidence for that. At present, the humiliation that so many rape victims have to go through makes it likely that there are fewer false claims in rape cases than in other cases. I am not denying that there might be false claims, but everything indicates that they will be so few that that should not be seen as a separate issue from claims associated with other sorts of criminal case.

We are all brought up with prejudices around sex. To counter those prejudices, the Bill also states that the judge on each and every rape case where it is relevant must direct members of the jury that they cannot assume that the complainant did freely agree just because they did not say anything, because they did not physically resist, because they were not physically injured or because on an earlier occasion they had consented to sex with the accused or another person.

On the latter point, people assume that consensual sex on one occasion can be used to indicate consent to sex on another, but that is the rapist's charter. Whether it is a husband, a gay lover, or someone met once before on a date, the fact that there has been consensual sex once or perhaps countless times before does not mean that there has been consent on the occasion when one partner forces themselves on the other.

No one is suggesting that if a husband is accused of raping his wife the fact that they have been married for 20 years should be concealed from the jury. Beyond that 176 fact, however, except in very rare cases, it is irrelevant how often or what type of sex they had. On the rare occasions when previous sexual history is relevant, the full protections of sections 41 to 43 of the 1999 Act must apply. Circumstances where sexual history might be relevant should be exceptionally rare, however. In general, the court needs to consider only the occasion on which the rape is alleged to have taken place.

It is time that we did more to protect the victims of rape. I commend the Bill to the House.