Women, rape and the criminal justice system - Appendix 1

Current legal position

The offence of rape is currently defined as:

"A man commits rape if:

  1. he has sexual intercourse with a person who, at the time of the intercourse, does not consent to it, and
  2. at the time, he knows they do not consent to the intercourse or is reckless as to whether they consented to it."

This definition includes both male and female victims and applies whatever the relationship between the persons involved, for example a man can now be convicted of raping his wife.

Consent

Consent is an absolute defence to rape. The law makes a clear distinction between consent and submission. Consent can be negated by: physical force; fear of death or immediate bodily injury; or fraud as to the nature of the act; or by impersonating a woman's husband. Whether or not the victim consented is a matter for the jury to decide.

Other sexual offences

If the evidence available is insufficient to prove an offence of rape, the defendant may be charged with other offences. Among these are: attempted rape; unlawful sexual intercourse with a girl under 16 years; unlawful sexual intercourse with a girl under 13 years; incest; buggery; indecent assault; and procuration.

Sentencing

The maximum penalty for rape is up to life imprisonment, and for indecent assault up to ten years imprisonment. However, it is very unusual for maximum sentences to be imposed unless there are a number of "aggravating factors" such as the use of extreme violence, multiple offences, or considerable previous convictions for similar offences. The sentences imposed for sexual offences vary widely. New proposals for the sentencing of repeat sexual offenders are currently being considered (Home Office, 1996b and 1996c).

Anonymity

Since 1993, victims of rape and sexual assault have been guaranteed anonymity. It is a criminal offence for anyone to publish the name, address, a photograph, or other details which may identify a victim of rape or other sexual assault.

Mitigation

After a person has been convicted, arguments can be put forward by the defence barrister for a lighter sentence. This is called a statement in mitigation. Mitigation may include putting forward a version of the facts which is in conflict with the victim's version, or which casts aspersions on the character of the victim. In the past, the victim had no opportunity to challenge such statements and they were liable to be reported in the press. The prosecuting barrister now has a responsibility to intervene on behalf of the victim if she/he knows the mitigation to be false. New provisions in the Bar Council Code of conduct limit the

circumstances in which derogatory mitigation can be made and, when it is, the defence must give advance notice to the prosecution. The Criminal Procedure and Investigations Act 1996 gives the courts the power to restrict the reporting of statements made in mitigation, if there are grounds for believing that it is derogatory to a person's character, false, or irrelevant to the sentence.

The role of the victim in court

In law the victim has no status. If she/he is required to give evidence she/he has the status of witness. Once an offence has been reported, it is up to the police to investigate and the Crown Prosecution Service (CPS) to determine whether the case can proceed to court. The first test applied by the CPS is whether there is sufficient evidence for a realistic prospect of conviction, and the second is whether it is in the public interest for the case to go to court. The victim's interest is a part of the public interest criteria. Some of the public interest factors which can affect the victims, which are likely to tend towards a prosecution are: where a conviction is likely to result in a significant sentence; a weapon was used or violence was threatened; the victim of the offence was vulnerable, had been put in considerable fear or suffered personal attack; where there are grounds for believing that the offence is likely to be continued or repeated.

The victim of the crime is regarded as an ordinary citizen with a responsibility to assist the police with the provision of evidence, and when that evidence is needed as part of the prosecution process, to act as a witness in court. No special status is granted to the victim in rape cases. As witness for the prosecution, victims are not provided with their own legal representation in court and may not have been introduced to the prosecution barrister prior to giving their evidence.

Criminal injuries compensation

This is an award, paid by the State under the Criminal Injuries Compensation Act 1995, for people who have been injured by violent crime. To claim this award an application must be submitted to the Criminal Injuries Compensation Authority (Criminal Injuries Compensation Authority, 1995). Applications must be made within two years of the incident, which must have been reported to the police as soon as possible. Certain other eligibility criteria must also be satisfied and, in particular, no award will be made where the victim is still living with the attacker.

The compensation scheme is tariff based, which means that victims are awarded a fixed amount according to the injury suffered. There is a fixed award for rape of £7,500 (which is a third more where there were two or more attackers). A higher award may be paid where there are other serious bodily injuries. Loss of earnings may be paid where the victim is unable to work for more than 28 weeks.

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