Reflection on the law of rape

Graham Bell QC questions whether the new law of rape reflects contemporary attitudes and argues the restatement of the law may have been best left to Parliament

The word “Rape” conjures up in the minds of men and women alike a most despicable and cowardly crime. In Stallard v HM Advocate 1989 S.C.C.R. 248 the Lord Justice General (Emslie) in delivering the opinion of the court observed at page 253 that “rape has always been essentially a crime of violence and indeed no more than an aggravated assault”.  By that his Lordship meant that the aggravation was violence on top of sexual intercourse.  But for the violence the crime would be an indecent assault.

It is beyond question that a woman has always the right to say “No”.  Likewise a man has no right to proceed to sexual intercourse unless the woman has consented.

It is in my opinion clear that there are therefore two distinct circumstances where the woman is subjected to unacceptable conduct, both of which are unbearably distressing.  Firstly, it is horrific for any woman to be subjected to intercourse achieved by the use of force whether that be of violence, threats of violence, drugs or some other method used to overcome her will.  Secondly, where the woman has been subjected to intercourse without consent although no such force has been used.

There has been much discussion as to the essential components of the crime of rape resulting in the Lord Advocate’s Reference Number 1 of 2001.  The opinions in the reference were issued on 23rd March 2002 and are now available on the Scottish Courts website.  In addition the Justice 2 Committee of the Scottish Parliament has had under consideration amendments to the law relating to sexual offences and rape in particular.  The Committee is however looking at evidential and procedural matters largely to do with a perceived abuse of complainers by a widespread practice of attacking their characters.

A number of bodies including the Faculty of Advocates presented written submissions to the Justice Committee and were invited to appear before the Committee.  On behalf of the Faculty the difference in the two scenarios was pointed out and it was suggested that the Scottish Law Commission should be invited to reconsider the whole question of the law of rape.  In particular it was submitted that times have changed and a law of rape which has required the overcoming of the woman’s will by force or some other means may no longer be adequate to meet the needs of today.  Those submissions were of course preceded by the Lord Advocate’s Reference.

The Historical Background

In Hume’s Commentaries in 1789 (Vol. I, 301-302) Baron Hume records rape as one of the four pleas of the Crown.  Like murder it carried the death penalty.  He described the crime as “Being a robbery of that in which a woman’s honour, her place in society, and her estimation in her own eyes, depend; and being also, in the perpetration, necessarily accompanied with great alarm and terror, being actual violence to the person.”   The Roman commentators had considered abduction of the woman an essential element.  Hume dismissed abduction as a necessary element stating that the Law of Scotland “Holds the crime of rape for complete, without any abduction, by the knowledge of the woman’s person, forcibly and against her will”.  Importantly Hume at p. 302 sets out the second criteria required as the “knowledge” of the woman must be against her will, “and by force.”  He goes on to state that even although the woman may have been forcibly abducted and carried off with violence and even detained in a state of confinement and distress if thereafter she submits “to the embraces” of her companion without any use of threats or violence at the time or recently before, this is not rape “but a crime of a different though perhaps still more base and flagitious description.”  At p. 303 Hume anticipates that the overcoming of will, may be brought about by drugs administered to her, which he says is just as great a violence to her person and constitution.  He poses (at p. 303) the question: is force necessary in the violation of pupils?  He holds that it is not as there is constructive force in the carnal knowledge of one too young to give consent. 

In Charles Sweenie v H M Advocate (1858) 3 Irv. 109, Lord Cockburn said in reference to the earlier case of Fraser that the essence of rape was that intercourse was obtained “without the woman’s consent.”  In Fraser v H M Advocate 1847 Ark. 280 there was an issue as to the absence of force.  In Sweenie however the majority of the Court (Lord Cockburn dissenting) held that force was a necessary component in the crime of rape.  The Opinions in Sweenie were examined closely by the judges in the Reference.  Sweenie was charged with intercourse with a sleeping woman.  The Court held it to be an indecent assault.  They were reluctant to categorise the crime as rape, which was then a capital offence.  Accordingly in Sweenie intercourse without consent but without force was categorised as an indecent assault and would now be categorised as clandestine injury.

The Approach Prior to the Lord Advocate’s Reference

Sir Gerald Gordon in the Third Edition of “Criminal Law” Vol II Chap.33.01 reviews the history of the crime from the time of Hume through Burnett p. 101; Alison  i 209 and Macdonald 119 all of whom considered force an essential element.  Gordon defines rape as being “the carnal knowledge of a female by a male person obtained by overcoming her will.”   The absence of mens rea where the man genuinely but mistakenly believes the woman is consenting prevents a jury from convicting even where intercourse has been accompanied with violence.  That definition is to be found in Jamieson v H M Advocate 1994 SCCR 181 per the Lord Justice General (Hope) at 186 A-B.

Jamieson followed and approved the decision of the Court in Meek and Others v H M Advocate 1982 SCCR 613.  In Meek a number of accused were charged with raping a complainer.  All the accused maintained the complainer had consented.  The appellants complained the Trial Judge in directing the Jury on the issue of an honestly held belief failed to follow the directions of the House of Lords in an English case of R v Morgan [1976] AC 182. He failed to direct that a person cannot be convicted if he honestly albeit mistakenly believed the complainer was consenting even if that belief was not based on reasonable grounds.  In Meek the Lord Justice General in dismissing the Appeal said at page 617 “The crime of rape consists in the carnal knowledge of a woman forcibly and against her will.  It involves that the act of the accused is consciously and intentionally or recklessly done against the woman’s will.  The essence of the crime is the absence of any belief that the woman is consenting.”

In Jamieson (1994 SCCR 181) the question of belief was further considered and explained.  The Court held that the mens rea of rape includes the intention to have intercourse with the woman without her consent and the absence of a belief in consent is an essential element.  Accordingly an honest belief although formed in the absence of reason for holding such a belief would result in acquittal.  The issue of the use of force was not considered but the definition approved in Jamieson involved “overcoming” her will.  Jamieson is not authority for the proposition that the definition of rape in Scotland and England was the same prior to the Lord Advocate’s Reference.

A Comparison of the Law of Rape in Scotland and England

In England rape is defined by section 1 of the Sexual Offences Act 1956 as amended as sexual intercourse “At the time he [the accused] knows that the person [the complainer] does not consent to intercourse or is reckless as to whether that person consents.”  Accordingly the use of force plays no part other than as an evidential factor pointing to lack of consent.  In England juries are apparently prepared to convict of rape where no force has been used whereas it appears from the number of acquittals in Scotland that the public generally relate rape with force.

The Law as Defined by the Lord Advocate’s Reference

Number 1 of 2001
A Bench of Seven judges heard the Lord Advocate’s Reference.  The seven judges who presided took some time to reach their decision.  As in the case of Charles Sweenie supra the judges were not unanimous in their approach.  There was however a majority in favour of a restatement of the law.  The majority Opinion is stated by the Lord Justice General Lord Cullen with whom Lady Cosgrove, Lord Nimmo Smith, Lord Wheatley and Lord Menzies agreed.  Lords Marnoch and McCluskey dissented.

The Lord Justice General referred to the reservations of Lord Justice Clerk Aitchison in HM Advocate v Logan 1936 J.C. 100.   At page 102 the Lord Justice Clerk (Aitchison) observed to a jury that they might think that the distinction between rape and indecent assault, in the case of a woman who had been made insensible through taking drink, was “a very odd distinction, but it is there on the authorities”.   The Lord Justice General explained the possible reason that rape was in earlier times a capital offence hence the reluctance to extend rape to a case where a man took advantage of a drunken woman incapable of giving or withholding consent.  His Lordship also relied on the dissenting opinions in Sweenie.  Moreover four of the judges in Fraser had held that lack of consent was of the essence of rape and the overcoming of the will was merely evidence of lack of consent.

At paragraph 41 of his Opinion the Lord Justice General said, “ I am conscious that a court of law should not take upon itself what is properly the function of the legislature. However, it is well recognised that the common law should take account of contemporary attitudes and mores.”  In his final paragraph numbered 44 he redefined the actus reus of rape as “constituted by the man having sexual intercourse with the woman without her consent” thus removing as an essential ingredient the overcoming of her will.

A Comment on the Development of the Law

Relating to Sexual Offences
It is of course important that the law develops to meet changing social times.  The fact that our criminal law is largely common law enables the Courts from time to time to adapt the law to meet the times. It is however more questionable that the power of the Court should be used to change the inherent nature of the crime rather than Parliament on mature consideration aided by the Scottish Law Commission.  Lord McCluskey in particular questioned the restatement of the law of rape by the Court rather than Parliament.  In his Opinion quoted above the Lord Justice General recognised that the common law should take account of contemporary attitudes and mores. 

I have with respect no difficulty with that approach but the problem is to know precisely where contemporary attitudes lie.  Juries have for many years balked at convicting of rape in cases where contemporary attitudes appear to hold sexual intercourse is or was to be expected or, if not expected, it could not be said to come as a surprise.  The judges of the 19th century would no doubt find contemporary attitudes to sex shocking.  The fact that many young people (and not so young) regularly engage in sexual intercourse after a night spent in the consumption of alcohol or worse could not have been envisaged by Lord Cockburn in his Opinion in Fraser.  Jurors live in the 21st century and have to judge cases in light of their experience.  We are constantly told that many young people experience a sexual relationship with a number of partners outside marriage.  The problem is in my respectful opinion focused by Lord Marnoch in the course of his Opinion thus: “Although the occurrence of intercourse in such circumstances could doubtless in future be charged as ‘rape’ there is, in my view, a world of difference between what would then be a species of ‘indecent assault’ and the existing charge of rape in which the word ‘assault’ connotes the use of force or violence as a necessary preliminary to obtaining penetration.”  

My concern remains that to remove violence or the threat of violence from rape is to categorise the drunk man engaging in intercourse with the woman he has been drinking with for many hours, along with the man who forcibly attacks an unknown woman for the purpose of sexual intercourse.  The latter cases are mercifully rare but juries in my experience have no difficulty in convicting in such circumstances.  The former are all too familiar and so often result in acquittal (often by a Not Proven verdict). 

The problem lies in the number of cases brought before the High Court of Justiciary charging an accused with rape which are rejected by the jury of 15 persons drawn from differing ages and experiences.   It is necessary to examine the problem in the interests of both complainers and accused persons.  It is, as I have said, beyond doubt horrific for a complainer to be subjected to intercourse without her consent.  It is I am sure also horrific to have given evidence only to find the jury acquits the accused.  It is also equally unacceptable that an accused charged with rape should be wrongly convicted.  Miscarriages of justice resulting in wrongful convictions must be avoided in rape cases as in all other cases. In Stallard v HM Advocate 1989 S.C.C.R. 248 the Lord Justice General (Emslie) in delivering the opinion of the court observed at page 253 that “rape has always been essentially a crime of violence and indeed no more than an aggravated assault”.   As Lord Justice General Cullen observed in his Opinion in the 2001 Reference that appeared to recognise the importance violence or the threat of violence played in the crime of rape, the aggravation being violence and not sexual intercourse.  Without such aggravation the crime would otherwise be an indecent assault.

The Lord Advocate’s Reference was brought following a Trial Judge withdrawing a charge of rape from the jury because there was insufficient evidence that the complainer’s will had been overcome. The Lord Advocate sought a ruling that the overcoming of the complainer’s will was not of the essence of the crime of rape and that rape was committed by the act of intercourse in the absence of consent.  The proof of absence of consent in most cases comes from evidence of the complainer’s distress.  If rape is to be reduced to intercourse without consent the only evidence necessary to secure a conviction will come from the complainer and can be corroborated usually by her exhibiting signs of distress. Physical injury or the overhearing of violent conduct consistent with overcoming her will may still play a part in establishing absence of consent but the jury will no longer be required to be satisfied that before intercourse took place the accused overcame the will of the woman.  It remains to be seen whether juries will be any more willing to convict of rape even when so directed. 

The Court of Seven judges could not agree and Lord Marnoch and Lord McCluskey dissented. As I understand the dissenting opinions it is not that either judge thought a man was entitled to have sex without first obtaining the woman’s consent but rather the crime of rape should remain what they held it had always been i.e. one in which the obtaining of sexual intercourse was effected by force.  Lord McCluskey, with whom I would respectfully agree, thought in particular it was wrong in principle to alter the nature of rape without the Law Commission having considered the issue and Parliament thereafter enact any legislation necessary to achieve a proper result.

Experience as a defence counsel and as an advocate depute shows that juries are reluctant to convict in the absence of some force be it only a threat of force.  We live in an age where it is socially acceptable if not the norm for men and women after a brief meeting at a pub to retire to his or her flat in the early hours of the morning.  Often both are the worse of drink or even drugs.  Neither is able to make rational decisions.  One thing leads to another and sex takes place.  The woman has not resisted but she has not consented either.  The awful truth dawns.  He has had sexual intercourse with her and she in the cold light of day is horrified and distressed.  She seeks help and says she has been raped.  In law being drunk is no defence to any criminal act including rape.

In the light of the seven judge decision the Crown will now have to prosecute the man and charge him with rape.  A lesser charge of indecent assault or some new statutory alternative will not be available.  He will no doubt protest he did not force himself on her.  He can still resort to the defence that he honestly believed she was consenting and was not reckless in disregarding her lack of consent.  The jury will be forced to choose between two conflicting accounts of what happened in private between two people and probably young people.  They will know if they convict the young man is blighted forever and will have to serve a substantial prison sentence.  If they do not convict their decision will unquestionably add to the complainer’s distress.

The Trial Judge will now have to direct as a matter of law that the only issues are whether they believe the complainer when she says she did not consent or whether they believe the accused that he genuinely believed she was consenting.  The complainer will not suggest any force was used, nor was she plied with drink or drugs by the accused or even threatened by him to make her give in to intercourse and the jury will be entitled to convict of rape if they prefer her evidence.

It is, I would respectfully suggest, unfortunate that the Court did not accede to the submissions by the Amicus Curiae that the Court should leave the change in definition to the Scottish Parliament hopefully informed by the Scottish Law Commission.  Juries are not lawyers.  They bring to the decision- making process many different experiences of life.   It is the jurors who bring to the trial what the Lord Justice General describes as contemporary attitudes and mores. 

What has unfortunately come to be referred to as “date rape” seldom results in a conviction.  Juries applying their common sense find it difficult to determine when the young woman and the young man have retired together to his or her flat, after a drinking session often following some public demonstration of affection, that non-consensual intercourse is rape.  I do not believe the necessity of proof of will being overcome is the obstacle as in all cases hitherto evidence of force will be before the jury.  By returning verdicts of “Not Proven” juries indicate something less than acceptance of the accused’s position.  If juries find it hard enough to convict even where there has been some evidence of the complainer’s will being overcome is the mere alteration in the test likely to result in more convictions or in more prosecutions resulting in acquittal?

In the Reference Lord Marnoch delivered a dissenting Opinion. He summed up his approach to the earlier cases of Fraser and Sweenie: “In all the foregoing circumstances, and with all due respect to those who think otherwise, I cannot, myself, see how the law was in any way altered in Sweenie. Rather do I think that that decision simply re-affirmed the law as laid down by Hume”.  And later on his Lordship proceeds: “In that situation, and with all due respect to the Lord Advocate, I can only express my utter bewilderment as to why he, the Lord Advocate, should take as his “starting point” the rather confused obiter dicta in Fraser, let alone regard these dicta as alone representing the Common Law of Scotland as understood in the middle of the 19th century. In my opinion the obiter dicta relied on by the Lord Advocate are clearly at odds with every other authority at about that time and fall simply to be disregarded.”

In conclusion I would hope that the Scottish Parliament will seek advice from the Law Commission.  It is open to them to provide juries with an alternative statutory offence to cover the cases where no force has been used but the accused has taken advantage of the woman incapable of giving or withholding consent.  It will be for them to determine if the restatement of the law by the majority of the Court does indeed reflect the current attitudes and mores of the time.  Is it right in the absence of force of whatever type to categorise the offence as rape?  Is it right that women should continue to undergo the ordeal of giving evidence on a charge of rape when juries seem reluctant to convict?  Would a more just solution to both complainer and accused be brought about by a lesser alternative charge where force has not been used resulting in wider discretion in sentence?

Graham Bell QC is a former Advocate Depute and Chairman of the Advocates Criminal Law Group.