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.
In Victoria, changes to rape laws are now said 'not to be working'. There's a need to return to the nub of the problem, it's claimed, for fewer trials are ending in convictions, and fewer women are coming forward as victims/survivors. The Office of the DPP is under attack, detractors asserting that 'unwinnable' or 'doubtful' prosecutions are going forward to the courts, effectively 'deceiving' victims/survivors and adding to findings of 'not guilty' or successful appeals. The DPP responds that 'justice, not statistics' is the aim.
In South Australia, a man accused of having raped his wife in 1963 is taking his case to the High Court, saying rape in marriage was not a crime back then, so the prosecution is unfounded.
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'.
In Queensland, a fifty-eight-year-old man 'is allowed to walk free', having pleaded guilty to sexual intercourse with his step-daughter, then eleven years old, who became pregnant. There was a penalty of sorts: eighteen months, of which he had already served three whilst on remand, the remainder to be served on parole.
In sentencing, the Judge said there was 'no evidence' that the man had 'groomed' the child. Nor, the Judge asserted, had there been any evidence of his 'initiating sexual conduct'. This conceptualisation reveals many problems as to what is 'sex', 'rape' and 'exploitation', prompting the question why such statements provoke an outcry or, contrarily, acquiescence to the sentencing process and the crime. What is their validity, their substance and their foundation?
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.
She is also Visiting Fellow, Lucy Cavendish College, University of Cambridge.