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10 February 2001Printer-friendly versionEmail a friend

Sex crime and punishment

by Sara Hinchliffe

Reproduced from Last Magazine, Summer 2000

One of the proposals most likely to emerge from the ongoing Home Office review group on sexual offences is that the Morgan principle - the defence to rape of an 'honest though mistaken' belief in consent - ought to go. This principle is in line with a range of moves to tighten up the law on rape. Feminists and critical lawyers have argued that Morgan makes it easy for men to be acquitted when accused of rape - as Jane Ussher puts it, 'all the man has to say is "I thought she wanted it really" and the law may be lenient'.

If that were the case, the Morgan principle would indeed seem shocking. But this principle, arising from a case which was finally resolved in 1976, is more complex than that. Morgan, an RAF pilot, and three friends had been out looking for women. They were unsuccessful, and Morgan invited his friends to come home to have sex with his wife, telling them that her signs of resistance were not to be interpreted as lack of consent. According to Morgan, his wife liked kinky sex and the struggle contributed to her pleasure. In fact, Mrs Morgan offered considerable resistance to the men who in turn used considerable force. The friends were convicted of rape, Morgan with aiding and abetting (since under British law he could not then be convicted of raping his wife) - the jury considered their story 'a pack of lies' and convicted all four.

The men appealed against the direction of the trial judge that 'their belief in her consent must be reasonable'. The objective (reasonable man) test is applied in a variety of criminal cases. The men argued that they had held an honest belief that she had consented. The court of appeal dismissed their case, but gave leave for further appeal to the House of Lords on the question 'whether in rape a defendant can properly be convicted notwithstanding that he in fact believed the woman consented, if such belief was not based on reasonable grounds'. The Lords agreed that the appeal should fall, but also held that an honest, though mistaken belief in consent - however unlikely a reasonable man would be to hold such a belief - was a defence to rape.

One American academic argues that a crime of negligent rape should be created to deal with men who behave badly during sex
The Lords' decision was based on the importance of mens rea (guilty mind or criminal intent) in rape. They held that the act of rape is defined not just by the woman's lack of consent to sex (the actus reus) but by the man's intention to commit it (mens rea): the prosecution has to prove both elements beyond reasonable doubt. They concluded that either the defendant needed to know that the woman did not consent, or that he was reckless as to whether she consented or not in order to be convicted. As Lord Hailsham explained this decision:

'Once one has accepted...that the prohibited act in rape is non-consensual sexual intercourse, and that the guilty state of mind is an intention to commit it, it seems to me to follow as a matter of inexorable logic that there is no room either for a "defence" of honest belief or mistake, or of a defence of honest and reasonable belief or mistake. Either the prosecution proves that the accused had the requisite intent, or it does not.'

Since its inception, the Morgan principle has invited a host of objections. Feminists have been concerned at the way that what happens in the woman's mind - that she did not consent to sex - is disregarded by the Morgan mens rea requirement, and argue that the Morgan principle therefore privileges the standpoint of men over that of women. As Natasha Walter points out, even if the jury agrees that the woman did not consent they can still acquit:

'while female speech is marginalised in the courtroom, the defendant's speech is privileged. If a man can show that he might well have believed the victim was consenting - reading screams as squeaks of pleasure, or resistance as play - he will be acquitted even if the jury believes that the woman was not consenting.'

The law has proven itself entirely capable of dealing with 'Adonis' - who cannot believe any women would reject him
This is particularly offensive to those who wish to privilege the subjective experience of women in rape trials, and who reject the tradition of according the defendant the balance of doubt.

A further argument against Morgan is that it allows men to behave in an unacceptable manner, which the law should attempt to correct. For leading feminist academic Sue Lees, the definition of 'normal sex' encompasses a male view of women acquiescing to sexual use by men'. Lees objects to the fact that the law does not punish men for failing to behave politely in sexual matters: 'even if a man fails to read the woman's signals and to mutually negotiate sex, this need not be seen as rape.'

American academic Susan Estrich argues that a crime of negligent rape should be created to deal with men who behave badly during sex: 'A man who voluntarily sheds his capacity to act and perceive reasonably should not be heard to complain here - any more than with respect to other crimes - that he is being punished in the absence of choice.'

Many of these objections seem understandable, particularly for those horrified about the impact of rape upon women and the number of rapists who appear to 'get away with it'. Why, then, should any reasonable person concerned with women's rights want to stand up for Morgan?

The law does not privilege the interests of men above those of women. It 'privileges' the defendant
Because concern for the victims of rape, in this case, is leading to a situation where civil liberties are being assaulted and patronising ideas about women enshrined. This is something that should concern advocates of women's rights every bit as much as defence lawyers.

Morgan prioritises the importance of criminal responsibility, for which mens rea is shorthand. For those who are responsible for their actions - who have chosen a particular course of action - the consequence of a criminal conviction is punishment. The law holds that such blame and censure are only appropriate if the offender was morally responsible for his behaviour. Moral responsibility is attributed to those who understand the social norms to which they are subject and can understand and accept responsibility for wrongdoing. Political freedom assumes that people should be free from punishment unless they voluntarily choose to break the law. The concept of criminal guilt and therefore of responsibility are based on a conception of the rational agency of the individual who makes a choice to commit crime.

Individuals may act recklessly (in rape without caring whether the woman consented, or without considering it in the first place, which is considered to be the same as intending to have sex without consent and therefore criminally blameworthy), or negligently (failing to exercise care as would a reasonable person). Negligence is not generally regarded as a criminal matter since it involves no mens rea. Without such criminal intent, traditional reasons for convicting somebody of a criminal offence become nonsensical. Punishment is meaningless if the defendant did not intend his actions; deterrence makes no sense since the defendant did not foresee the outcome of his action; there is no considered behaviour which would benefit from rehabilitation; and what point would there be in retribution against somebody who has not chosen their actions?

In this light, the legal objections to Morgan fall. It is not the case that rape is differently treated from other offences against the person. In all such crimes, the lowest standard is one of recklessness. There is in general no crime of negligence in offences against the person; the law demands that there be intention before convicting.

According to Andrea Dworkin, 'Romance is rape embellished with meaningful looks'
There are some exceptions: for example, homicide. Murder is homicide with 'malice aforethought'. In some cases of homicide where there is no intention (manslaughter), the law holds the individual responsible - such as where there has been 'gross negligence'. But it would be bizarre to institute a crime of gross negligence rape. Unlike homicide, sex cannot be entered into accidentally or negligently. Sex is defined by the way it is carried out - on the basis of a conscious decision. The law recognises implicitly that unlike a homicide, where there is a dead body to account for, the sex act in itself is not harmful.

Put more strongly, mens rea is the basis of society's condemnation of the guilty. If a man can be convicted of rape without intent - in other words through mistake - then how can we hold him responsible for his actions? How can we condemn him for not acting otherwise? The principle of human agency - of making choices and being held accountable for them - is the basis both of innocence and of guilt.

Critics of the Morgan principle are at best mistaken, and at worst disingenuous, if they argue for changes in rape law through claiming that it is tried differently from other offences against the person. More such amendments to the law would separate rape even further from other offences. Too often victims of rape are told that it is an offence different from any other. The implication is that it is impossible to recover from rape. The mounting number of special measures used to try rape can only contribute to the perception that it is an extraordinary crime, and to the particular types of guilt and trauma associated with rape victims. It would be far more helpful if rape were brought into line with other offences against the person - when, however terrible the assault, it is tried in the same way without establishing new legal approaches.

The argument of feminist critics like Sue Lees is essentially that rape should be a crime of strict liability - where what matters is only the woman's lack of consent, and no criminal intention need be proven. This argument goes contrary to the principle that individuals should only be punished where they have deliberately broken the law, and that punishment should be reserved for those who have acted freely: unless a man has the capacity and a fair opportunity to adjust his behaviour to the law its penalties ought not to be applied to him. By punishing where there has been a choice to do wrong the law acknowledges this and offers members of society the right to self-determination. The law recognises the importance of self-determination by refusing to apply the penalty of imprisonment in strict liability cases.

The law has proven itself entirely capable of dealing with 'Adonis' - who cannot believe any women would reject him. Adonis is likely to be convicted on the basis of recklessness (not caring) whether or not the woman consented. Men have been properly convicted in the absence of mens rea on the basis of intoxicated mistake, for example. The Morgan verdict, where the jurors (and all higher courts) agreed that the men's story was 'a pack of lies', indicates that juries are quite well able to draw just conclusions on the basis of the evidence. In this case they concluded that the men lied about their honest belief in Mrs Morgan's consent, and that they had intended to rape her.

It may appear absurd to hold that a man should - in fact must - be acquitted if he did not intend to rape, even if the jury agrees the woman did not consent. Rape (and particularly acquaintance rape) is certainly a crime that is hard to prove. But this is for good reason. The law does not privilege the interests of men above those of women. It 'privileges' the defendant only in the sense that he is protected from unjust accusation, from being deprived of his rights as a citizen, by the burden of proof rule and the protections granted to the defence. It is the prosecution that has to prove, beyond reasonable doubt, both that the complainant did not consent and that the defendant intended to rape her.

Feminist critics of the law should bear in mind the importance of such assumptions about the capabilities of defendants, for women can also be defendants. The law's assumption that all adults have a sense of agency and responsibility is important for men and women alike. Too often the debate on rape law reform calls for special protections for rape victims, primarily women. This risks treating them less like citizens, equal to men, and more like children in child sex abuse cases, who are shielded from courtroom confrontation.

The feminist case for rape law reform is often - implicitly or explicitly - based on the idea that sex and rape, particularly as defined by law, bear a distinct similarity to one another. As Catharine MacKinnon has argued, backed by Andrea Dworkin ('romance is rape embellished with meaningful looks'), and others, many feminists appear to believe that what we would commonly understand as normal sex should be subject to legal penalties - that the law should act to promote particular types of sexual behaviour. Sue Lees argues that the law should promote 'communicative' sex - and therefore that it should penalise the non-communicative. She claims that 'calling rape violence fails to address the coercive nature of some male sexual behaviour'. The radical argument that rape and sex are similar has become increasingly popular among British feminists and appears to be finding increasing favour in official political and legal circles. Lorraine Kelly and Jill Radford claim that the law's distinction between rape and sex is problematic since it 'suggests that clear distinctions can be drawn between violence and non-violence and thereby between abusive and "normal" men'.

But the law correctly recognises that having sex is no crime. The definition of rape codifies this by foregrounding the notion that the rapist is one who intends to commit a crime, rather than a sexual act. Rape is defined in law by the intent (or knowledge) to commit rape on a woman who does not consent. The law is framed in this way precisely to ensure that rape is distinguished from sex; it says that the enthusiastic seducer is not punished for rape. The law refuses to punish mistakes, lack of courtesy or even aggression in personal relationships. Its purpose is to punish men who force women to have sex against their will.

Essentially, the law works on the basis of an assumption of women's responsibility and agency in sexual matters. It assumes that women are able to - and therefore must take responsibility for - making it clear what they want. The law currently says that where women do so, and men coerce women (whether violently or not) into sex, then they are guilty of rape. The law distinguishes between coercion and seduction. Coercion is criminal because it means intent; seduction is simply that - persuasion. Seduction may turn into rape, but only if the woman makes her wishes clear - and the law recognises women's agency in making it clear that she needs to do so.

It is important to see rape as a violent assault, qualitatively different from our normal sexual experiences, however unsatisfactory they may be. This is a view still supported by Germaine Greer, who argues that there should be no specific crime of rape, and that it should be prosecuted as assault. Yet it is a deeply unpopular view among those feminists today, who, like Lees, want to argue that much heterosex is problematic and abusive.

A range of once-radical feminist ideas - the suspicion of heterosex; the demand that women should always be believed and that they never lie about rape; the notion that the law should be more interventionist in policing men's behaviour - are increasingly influential within the New Labour administration. These ideas have been seized upon by policymakers, and politicians, and have created a climate increasingly hostile to civil liberties and to the most basic ideas of human responsibility. Demands to increase the conviction rate in rape cases (to lock more men up on less evidence) through a more inquisitorial approach to rape trials have become commonplace. New precedents are being set, which call into question the central idea of equality before the law for men and women. Those of us prepared to put our heads above the parapet and ask some basic questions ought to start doing so.

Reproduced from Last Magazine, Summer 2000

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