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Crime and Gender
Critically analyze the extent to which the interests of the female victim have been addressed in the ensuing of the law of rape.
Throughout the years people have changed their mind into different perceptions in matters of what is sex. Any kind of sexual expression except face-to face sexual intercourse (missionary position) between husband and wife for the reason of making children was previously an offence in opposition to canon law and a sin based on the Christian Church. Several people are being offended when it comes to pre-marriage and extra-marriage sex, while some others hold back their conviction for immorality and there are others who believe that all these behaviours are inoffensive provided they take place in conditions that do not cause trouble to third parties. (West, 1987)
In the Elizabethan times, England allowed girls to take part legally in sexual intercourse at the age of ten and it was called ‘the age of consent’. Over the nineteenth century it was increased by phases to sixteen, mostly to prevent the sale of children in prostitution by their unprincipled parents. (West, 1987)
Gaining sex by violence has been broadly but not across the world disapproved. Some ancient people often protected brides by capture in the course of raids on neighbouring regions. The legal assumption that a husband is not allowed to rape his wife, because he would be doing no more than using his marital rights, was a matter of discussion. Obviously, sexual traditions are well culture-bound. Inside our own society a range of principles coexist and this increases the conflict more than tolerance. Beliefs about what is improper sexual behaviour are occasionally held with power of conviction that reduces rational discourse. (West, 1987)Get help with your essay from our expert essay writers...
It is not at all times easy to make a decision on which crimes ought to be labelled as ‘sexual’. Rape is a crime that has to do with sexual behaviour, but the criminal part is not the sexual act itself but the method in which it is achieved. The record of offences ranked as sexual regarding which the Home Office needs announcement from police services consists of bigamy and procuration and also more exclusively sexual acts as buggery and indecency between males. (West, 1987)
Rape that deserves life imprisonment is extensively considered as the most important of sex offences, even though a few sexual assaults that do not have to do with genuine contact can be more awful, tender or harmful. The crime of attempted rape, not constantly readily obvious from indecent assault, is ten times not as much of regular as rape according to nationwide statistics of convictions. Ever since the Sex Offences Act 1985 has become like rape, issue to highest sentence of life imprisonment. A man commits rape when he accesses with his penis the vagina of a woman and not his wife’s without her permission, which is occurred by violence, threat or trick. A woman who helps a man in raping another woman can be found guilty as an assistant. The law of rape has been criticized, not for not having clarity, but because the classification prohibits penetration of mouth or anus and prohibits penetration of vagina by hand or item. Processes of enforcement have been criticised as well. Except if an appellant has been assaulted by a stranger or evidently mistreated she may find it difficult to prove absence of consent, even though failure to battle back matches to police guidance to possible victims not to provoke worse violent behaviour.
Male examiners, prosecutors and judges are said to be over sceptical of the testimony of rape victims in comparison with their agreement of reports by victims of other kinds of crime.
The chance of a real mistake as to whether a woman is actually agreeing to copulation appeared in the infamous case of Morgan v.DPP, which arrived at the House of Lords. In this case, “a husband had invited three men home, telling them that his wife would be willing to have sex with them, but would probably pretend to resist because that increased her pleasure. They accepted, and each had intercourse with the woman while the others forcibly restrained her. She reported the incident to the police, claiming that she had been raped repeatedly in spite of doing all she could to resist. The defendants were convicted, but appealed on the grounds that they had reason to believe that the woman had consented. Their convictions were upheld because their testimony was not accepted, but the judges confirmed that a man must know that his victim is not consenting in order to commit rape”. Much public criticism followed this decision and let to the introduction of a precise definition of rape in the Sexual Offences (Amendment) Act 1976, which states that a man commits rape who has unlawful sexual intercourse does not consent to it and at the time he knows that she does not consent or is reckless as to whether she consents. (West, 1987)
Until 1976 there was no statutory definition of rape. Section 1(1) of the Sexual Offences Act 1956 simply provided ‘It is felony for a man to rape a woman’, whilst section 1(2) provided ‘A man who induces a married woman to have sexual intercourse with him by impersonating her husband commits rape.’ (Rook & Ward, 1997)
The Criminal Justice and Public Order Act 1994 has made some significant changes to the law of sexual offences. In particular as a response to rising public concern over incidents of male ‘rape’, section 142 of the Act re-defines the offence of rape, by substituting a new section 1(2) of the Sexual Offences Act 1956 which brings anal intercourse within the scope of offence:
‘1. (2) A man commits rape if-
- he has sexual intercourse with a person (whether vaginal or anal) who at the time of the intercourse does not consent to it; (Actus Reus) and
- at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it.’ (Mens Rea)
There have been many efforts by Parliament to tackle the argument surrounding rape and the criminal justice system’s treatment of its victims. The latest is the Sexual Offences Act 2003 (SOA 03). In the case of R. v PK , the two brothers (P and T) appealed against their convictions for numerous sexual offences. P was convicted of fourteen counts of indecent assault and four counts of indecency with a child. T was convicted of four counts of indecent assault and one count of rape. The offences were held on their five family members. The complainants made the allegations several years after the abuse had ended. Both P and T denied that the alleged incidents had occurred and claimed that the allegations were deliberate lies and the result of collusion between the complainants. There was evidence of P's bad character. Against T, the judge directed the jury to have regard to the distinction between real consent and "willing submission". P and T were convicted and sentenced to terms of imprisonment totaling 11 years and 7 years respectively.
It applied the proposals of the Sex Offences Review which reported in 2000 and with regard to the offence of rape; it suggested a redefinition of the offence to contain penetration of the mouth by the penis. Where exacting situations prevail the SOA 03 has reversed the burden of proof in an effort to deal with the low conviction rate for rape, which, using the Home Office figures was at an all time low of 5.6% in 2002. This concerns cases where consent is a matter, mainly where the victim is helpless of giving legitimate consent whilst under the influence of drinks or drugs. As an alternative of the biased truthful belief defence under the Morgan principle, the defendant will have to show that he had taken all sensible steps to determine that there was free agreement to sex.
Another case is R. v CJF  which appeared at the Court of Appeal. Applicant (C) applied for leave to appeal against his conviction on a lot of sexual offences, and the most important all of was rape. All the offences C had to do with suspected sexual abuse of his granddaughter. He started abusing her when she was ten years old and he raped her when she was fifteen. It was C's case that his granddaughter had made up the accusations against him but the jury showed by its judgment that it believed the evidence of the granddaughter. A juror informed the court that the girl had been sexually abused as a child but that did not influence her attitude and she was able to judge the case on all the evidence. C had requested the jury to be discharged or even only that one juror, because there was a real option of unfairness. The judge had dismissed the application.
C went over his submissions on appeal, recognizing that R v Patel  EWCA Crim 1157 (Unreported, April 28, 2004) had an additional difficulty.
It as held, declining the submission, that even though it was said in R. v P that there could be cases where, by reason of identity or striking similarity of situations, it would be right to keep out a specific juror from continuing as a member of the jury that was not the kind of case which was before the court in R. v P.
In the case of R v Gardiner  Crim L R 455, the defendant did not really believe that the other person was accepting that lack of certainty will mean recklessness. G was accused of attempted rape of a young female employee who stopped at his house to deliver some papers. He tried but he did not manage to have sexual intercourse with her. G claimed that she accepted to have sexual intercourse with him. The jury required clarification of "recklessness" as to the complainant's lack of consent. The judge aimed at that the Crown must confirm that the complainant did not consent and that G either knew she did not consent or was reckless as to whether or not she consented. Held, permitting the appeal and canceled G's conviction, that the burden of proof lay on the Crown to negative the defense of "mistaken belief". The judge had directed the jury perfectly on the general burden of proof but had given no additional direction exclusively directed to the burden of proof on the Crown to disprove mistaken belief in consent.
What happened in this particular case was almost unacceptable. It is not logical but thus confusing. This is because by analyzing the state of mind of the defendant who fails to even consider the issue of consent, we understand that the mistaken belief as to if she agree to involve that he had wrongly understood the woman’s desires. His wrong belief as to whether she accepted or not cannot enlarge to a position where he is so recklessness that he fails to think what she wants, this is evidence of intention. Lord Hailsham considered this to be correspondent of intention when he stated: or the equivalent intention of having intercourse willy-nilly not caring whether the victim consents or no’.
The former common law offence of rape needed evidence of resistance to oblige fraud or fear before consent was canceled. Earlier to 19th century judges would lead juries that rape was ‘sexual intercourse against a woman’s will by force or fear by fraud, or else a healthy uncertainty to her report should be shown. According to Kalven and Zeisel (1966) the evidence of physical violence reinforces the woman’s case in demonstrating lack of consent; in fact the existence of a high degree of force is important. The lack of violence, known as simple rape was the outcome in only three out of forty two cases leading to conviction. In 1985, 90% of rape cases implicated some threat or use of physical violence despite the ruling by the CA held in the case of Olugboja  that lack of consent does not have to be associated with by confrontation, struggle, violence or threats, as beforehand required under the common law.
The case of R. v Winchester (Stephen Edward)  was about the appellant (W) who had pleaded guilty on rearraignment to assault by penetration, appealed against his sentence, namely imprisonment for public protection with a minimum term of two years and three months. A woman in her forties had allowed W to spend the night at her home. W entered the room in which she was sleeping, produced a knife, forced her onto her chest and inserted his fingers into her anus. The assault caused serious bruising. W, who was aged 27, had never been in trouble before the incident. He argued that the judge had been wrong to impose a sentence of imprisonment for public protection. Appeal was allowed. The judge had given insufficient attention to W's history, in terms of his good character and the positive evidence that was available as to his usual conduct. The offence called for a term of imprisonment, properly identified by the judge as four years and six months. Such a sentence would be substituted for the sentence that had been imposed.
Every year, in England and Wales, there is 61.000 reported rapes of females. The findings of the Home Office Research 237, state that women who reported an incident of sexual victimization during the last year were most likely to say they felt very unsafe walking alone in their area after dark. Women who had been victimized within the last five years were more likely to feel unsafe than women victimized more than five years ago. Women who had ever been sexually victimized were also more likely to say they felt unsafe walking alone in their area after dark than women who did not report an incident of sexual victimization. Women who reported ever being raped are more likely to avoid certain places or people as a result of their victimization and are much more likely to go out less often than are victims of sexual assaults. Roughly half of women who have ever been raped or sexually assaulted take extra personal security measures as a result of their experiences. The relationship of the victim to the perpetrator does not appear to have a great deal of bearing on victims’ movements. Victims of stranger attacks are slightly more likely to avoid certain people or places as a result of their experience (63% reported doing so) than are victims of attacks by partners and ex-partners (58%) or acquaintances (61%). (www.homeoffice.gov.uk)
Rape in particular is one of the most under-reported crimes. In 1999 the police recorded 7,707 incidents of rape. The 2000 BCS best estimate of the number of victims of rape in the last year is 61,000. The highly personal and traumatic nature of sexual victimization means that as well as often not reporting their experiences to the police, victims will also be reluctant to share their knowledge of their experience with anybody. Much effort has been invested by the voluntary sector in recent decades to try to prevent victims having to deal with their experiences on their own, should they not want to do so. However, this has often been concentrated in the area of domestic violence. There are now networks of rape crisis organizations and support services for both male and female victims of sexual attacks, but they tend to be under-funded and less widely available. The police have also attempted to encourage more reporting of sexual offences, by providing specially trained officers to deal with rape victims, although this varies between areas and forces.
Most cases on rape have justified the female victim and this is positive since there is so much crime in our society. Women are afraid to go out by themselves, or walk alone late at night. As a community, and individuals we have to make an effort to reduce not only sexual offences but generally crime. The defendants must understand the gravity of their bad behavior so that they would not do it again after they finish their sentence in prison. Women who get raped should immediately report that to the police without hesitating because it is a very severe offence and most of the times, the female victim wins the case. There are many organizations and foundations which support these women and help them heal from the trauma. Many rape and sexual assault victims suffer from Rape Related PTSD and the disorders listed below. Immediate reactions can be either expressive or subdued. The most common long term effects of sexual assault and rape are the invisible ones. The immediate symptoms of rape trauma include having unpredictable and intense emotions. The victim may have an exaggerated startle response (jumpy), may have memories and intrusive thoughts about the assault, nightmares, difficulty sleeping and difficulty concentrating. The long term psychological effects of rape can include PTSD and rape trauma syndrome (RTS), OCD, DID, Eating Disorders, Self Injury, Self blame, Panic attacks, Flashbacks, Body memories and sleeping disorders. Unfortunately in many cases these effects can be life long if the victim does not get immediate support and care. Some people mask these symptoms in order to cope with society. The problem of rape will not be solved by measures taken within the criminal justice system alone. Rape also has to do with the type of society in which we live, and the attitudes it fosters towards violence, women, and the relationships between the sexes. We need a broadly based strategy to deal with the problem. This must require an assessment of those issues which support sexual violence against both women and men, counting the position of pornography. It must also include projects of all kinds to render people less vulnerable and of course it must be engaged with education and re-education of children and adults to fight sexism which motivates and eventually promotes rape.
http://www.homeoffice.gov.uk/rds/pdfs2/hors237.pdf [Accessed on 31 March 2008]
Available from: - http://www.ibiblio.org/rcip/effectsofrape.html [Accessed on 31 March 2008]
Temkin, J. (2002) Rape and the Legal process 2nd edition. United States: Oxford University Press
Rook, P., Ward, R. (1997) Rook & Ward on Sexual Offences 2nd edition. London: Sweet and Maxwell
West, D.J. (1987). Sexual Offences and Confrontations. England: Gower