By Robin Joyce
Placidly reading an Agatha Christie on a day of rain and need for comfort I was swiftly disabused of that notion upon reading the following:
‘…Well we all know what rape is nowadays. Mum tells the girl she has to accuse the young man of rape, even if the young man hasn’t had much chance, with the girl at him all the time to come to the house while mum’s away at work, or dad’s gone on holiday. Doesn’t stop badgering him until she’s forced him to sleep with her . Then, as I say, mum tells the girl to call it rape…’
Mr Broadribb, lawyer, in Nemesis (1971) Agatha Christie
The discussion on Goodreads was, in general, opposed to this statement. However, there was still the introduction of ‘political correctness’ as a problem that had to be borne because of statements such as the lawyer’s in Nemesis and the assumption that possibly the statement held true in some cases.
I then turned to a non-fiction source. No comfort there:
Sex, rape and sexual exploitation are in the news. Yet media coverage confirms disparate views as to what constitutes any of them. Divisions in public opinion are highlighted when judicial decisions are reported. Episodes involving footballers and, at times, their associates, are met with contradictory statements, some accepting that a predatory culture, promoted by notions of fame underpinned by adulation and high-earnings, is endemic to the sport, others asserting that the men involved are innocent dupes of women courting notoriety, seeking money payouts or simply addicted to lies…
The problem is not confined to Australia. In the UK, women agitate for clarification of laws, improved prosecution services and training, whilst saying defence counsel continue to question women unremittingly in the witness box, with harassment and irrelevant questions. In Pakistan, women’s groups complain that not only is the legal system, including courts, prosecution services and police, a problem: the media has a share through its merciless reporting of victims/survivors, as if they are at fault, citing the ‘false complaint’ and the dichotomy between the ‘good’ woman – a wife, mother and Madonna – and the whore, the woman who surreptitiously sells sex for money, the one who blatantly displays her body, disports herself in unseemly manner, or simply and bluntly (no further explanations necessary) is ‘bad’…
Rape law has a long history. In the eighteenth century, Chief Judge Hale said women’s word was not to be trusted:
Rape is a charge easily made and hard to be defended against, be the accused never so guilty.
Like a mantra, this has been repeated throughout every century since. In the 1970s and 80s, women around the world, following women agitators of the past, sought to put this contention where it belongs: in the basket of unfounded accusations, itself. There is no basis for the proposition. The opposite is true. Studies show the false complaint rate in rape cases is no higher than in other crimes, such as robbery and theft. Besides, Hale had no foundation himself – or the most slender of foundations – for his ‘female falsifier’. In Rincon-Pineda, a 1975 Californian case, Hale’s ‘rule’ was found wanting. Rape is not a crime easily charged: its prosecution is more difficult than any other crime, and rather than the innocent being affected, it is the guilty who go free – if ever charged at all.
Hale based his contention wholly on a case at assizes. A twelve-year-old girl was witness-‘complainant’ in the prosecution. Hale said that although she ‘claimed’ rape, the accused was incapable of it: a hernia would have inhibited him from doing as she alleged.
Founding a ‘rule’ upon one instance is bad enough, particularly when so much more is needed to determine whether or not the girl was telling the truth, and whether or not a crime occurred. How did the hernia prevent the man from engaging in sexual intercourse in any position? We don’t know. Hale doesn’t tell us. When did the hernia develop? Was it there when the incident was said to have occurred? Hale opines ‘yes’, but how? And if so, was it the same size as when Hale observed it? Hale declines to say, or perhaps hasn’t even enlightened himself. What if the allegation of ‘rape’ was not made by the girl, she having complained of some sexual imposition or assault, with prosecuting authorities or others reconstituting what she said, transforming the allegation into one of rape? Hale provides no illumination on this: yet ‘rape’ has a particular meaning in law, ‘sexual penetration without consent’. ‘Penetration’ has its own definition. We know that language and its nuances are important in any field, most particularly in law. We know that victim/survivors of sexual crimes are often reticent about talking with authorities and that euphemisms are frequently used in sexual matters. What was the precise language the girl used to describe what had happened? What investigation took place?
Even if Hale’s assessment is entirely correct, how can one instance found an entire and categorical corpus of law: the false complaint, the false complainant, woman as perfidious liar in sex-crime allegations? How is it, too, that in this crime, like no other, centuries old precedent is repeated again and again, when for all other crimes the legal system has moved on? Even in traditional crimes such as murder, manslaughter, robbery, theft, fraud – it is rare, and mostly unknown, for courts to resort to ancient authorities.
In rape in marriage, Hale yet again leads. Here, again, the ‘no such crime’ contention is located. Once more, Hale’s mantra upon which courts are to rely, and wherein accused persons are to find their salvation:
[A] husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given up herself in this kind unto her husband, which she cannot retract.
This time, Hale relied on nothing but his own assertion, doubtless based in ‘ownership’ notions of marriage and ‘coverture’ – the principle that a wife was ‘covered’ by her husband so had no personality or identity in law. Thus a rape committed on ‘no one’ or on a person lacking identity is no crime at all.
Hale is said to be backed by Clarence v. Clarence – a more recent (1888) House of Lords authority which has, in any event, been entirely misrepresented. In 1977 (Scutt, Monash Law Review), analysis showed that the House of Lords did not assert rape in marriage to be ‘no crime’. The majority of the nine Law Lords raised, in various ways, questions critical of the Hale doctrine or, at least, asserting doubt. Rape in marriage was not directly before them – the issue was venereal disease infection of a woman by her husband. Whether the sexual act was consensual did not arise – although it may have, for the couple before the court.
As for sexual crimes against children and young people, nineteenth century women’s groups fought strongly for the age of consent to be raised from 12 years. This struggle has been (mis)represented as driven by puritan notions that ‘sexual play’ and indeed sexual relations as a whole were frowned upon by women demanding rights. This conforms to stereotypical charges today, where women standing up for women’s liberation are so often decried as ‘frustrated’, oppositional to sex and sexuality, and – again – just plain old ‘man haters’.
When women fought to increase the age of consent, it was because they recognised the vulnerability of children and young people, particularly girls. They knew that adults have immense sexual knowledge and power they can use to their advantage if imposing upon children or young people, whether by encouraging, inveigling, luring, attracting or forcing them into sexual relations beyond their capacity to initiate with intention, knowingly or at all.
So, is the law at fault? When the Women’s Electoral Lobby (WEL) Draft Bill on Rape and Other Sexual Offences was published in a Criminal Law Revision Report in NSW in 1977, a principal plank of the measures in the Draft was that education of the judiciary into an understanding of the reforms should be mandatory. At the time, this was resisted. Some years on, judicial education – accepted long since in the US and more recently in the UK – became acceptable, at least to Attorneys-General and, gradually, more and more Judges. Yet more is needed: there is little point in introducing law reforms, if provisions for compulsory education are not contained within the legislation itself. Judges will not have been educated in the new law, but in the old. Similarly with lawyers working in the field: their training will have been under the ‘old’ law, not the reforms. Nor can the education be seen as enough, or acceptable, if it is simply a ‘one-off’ seminar or even a day’s programme. Change and understanding of aims and perspectives does not come overnight. In any field such as this – where archaic notions unrelated to social conditions have held sway – addressing prejudice and stereotypical mind-sets requires ongoing training, education, discussion. Education cannot be confined to the courtroom, upon the principle that if sufficient cases come before the courts with argument presented in submissions and by observation, courts will come to comprehend the new laws, to ensure their effective operation. Victims/survivors and accused cannot be relegated to being an ‘educational function’. The outcomes are too important; the rights of both must be honoured…
Education is not a panacea. However, when sexual assault and predatory conduct are defined into ‘sex’, as if consensual, the conclusion cannot be avoided. Education of those interpreting and applying the law at all levels must be the order of the day.
Jocelynne A. Scutt, ON LINE Opinion, ‘Sex, rape and exploitation’, 18 May, 2011. (This section has been heavily edited to more closely reflect the word count requirements for this blog).
I am now looking for detective novels in which rape is treated in a non-discriminatory way. Easy beach or rainy day reading might be one of the ways in which the education Jocelynne A. Scutt refers to is made available to people other than interpreters and appliers of law. The recent successful Australian fight for marriage equality demonstrates what can be done by individuals’ determination to change laws. One criticism by the opponents was that homosexual relationships are permeating television programs – how wonderful, and perhaps this acted as an educative measure to their audiences.