Getting the balance right between victim and perpetrator

A widely supported aspect of the changed rape laws is the wider definition of rape (now often referred to as "sexual intercourse without consent" or "sexual assault") . Historically, the common law defined rape as "the carnal knowledge of a woman forcibly and against her will, with carnal knowledge defined as the penetration of the female sex organ by the male sex organ. (Other acts generally came under the crime of sodomy.) Revised legislation in English-speaking countries broadened the crime to include penetration of the anus or mouth by a person using any part of their body or a foreign object. Besides covering a wider range of acts, it is now possible for women, as well as men, to be convicted.

Most examples of female-on-male rape have involved the statutory rape of under-age males, most commonly rape by a teacher on one of her students. Women can also rape men through unwilling (anal or oral) penetration with fingers or objects, and through coercing them to penetrate the woman with an erect penis.

In the US, Chantae Gilman of Seattle is facing charges of one count of second-degree rape after she apparently broke into her 31-year-old male neighbour's apartment. The victim allegedly shoved the 240-pound woman off of him, when he woke up to her having sex with him. Court documents showed that she held the victim down during the alleged rape and told him to be quiet.

There are also documented cases of female-on-female rape, which can occur by forcible stimulation of female genitalia or forced penetration. In the UK Claire Marsh was convicted of rape and sentenced to seven years for her part in a gang rape. Marsh, of Margate, Kent, was involved in ripping off the female victim's clothes and pinning her to the ground so she could be gang raped "without resistance" by others.

In Australia a big issue, yet to be properly tested in the Courts, is the full extent to which, "fraudulent misrepresentation of any fact" (mentioned in ACT, WA and Tasmanian legislation), invalidates consent to sex. We have already had a case in Australia, where a person has been jailed (on charges of sexual intercourse without consent) for deceiving a prostitute about payment for sex. What if the man lied in other ways? What if he lied about his wealth or occupation? What if he said he loved her, when he did not? What if he was a married man but told the woman he was single? What if he misrepresented an unimportant fact? What if the woman lied in similar ways or lied about her age, altered her appearance with make-up and hair dye, or claimed that she was using contraceptive pills when she was not? The capacity of "fraudulent misrepresentation of any fact" to invalidate consent to sex truly opens up a Pandora's box of potential rape charges.

A very recent Australian case involving deception was the conviction by a Victorian court of an ethnic Indian man for sexual penetration by deception. The Judge said the victim's actions must also be "seriously questioned". The Defendant had met a woman on-line using a dating profile with a fake name, and falsely stating that he was a blond muscular Caucasian man. He almost got away with the deception by insisting that she kept her eyes closed during a tryst at her place. The woman, however, caught a glimpse of his dark skin afterwards (in the bathroom) and reported him to police.

In conclusion, I think there are two problems with legal changes, that effectively deem particular types of sexual encounters to be non-consensual.

The first is that the changes went too far in the range of circumstances captured, and dramatically changed the burden of proof to the detriment of the defendant. Australian jurisdictions went further down this path than, for example, the UK. [While I have a lot of sympathy for women, who were raped but can't prove it at law, we also need to be mindful that false rape allegations are not unknown. It has been reported that in the UKat least 109 women have been prosecuted for making false rape allegations in the last five years.]

Secondly and finally, it would appear that no amount of legislative change can be expected to overcome problems such as of lack of witnesses or evidence in a rape case. Issues of 'he says... she says" affect all types of trials, criminal and civil alike. They are innately insoluble, and are almost universally decided in favour of the defendant (for lack of proof) because protecting the innocent is rightly at the core of our legal system.