Monday, September 8, 2008




Jim Mora's Panel discussion of Ministry of Justice proposals for rape law reform with guests Richard Griffin and Garry Moore provides powerful evidence that decades of education and rape law reform aimed at challenging aggressive and proprietary images of masculinity and promoting new visions of equality in heterosexual relationships, have failed.

The Ministry's recommendations were summarily dismissed by Mora as nothing more than an inappropriate demand for written consent to sexual intercourse. Griffin agreed with Mora that the Ministry proposals were 'bad law' - the very idea of formal consent to sex 'beggared the imagination'. These men's criticisms of the Ministry's Discussion Paper were echoed by Moore, who described himself as unable 'to fathom where these people are coming from'!

Yet the Discussion Paper said nothing at all about written consent to sex. Instead, the Paper noted that victims of sexual assaults are the least likely to report violence; that there is good evidence rape survivors continue to be seriously harmed by their experiences in court; and that the conviction rate for sexual offences is lower than that for other crimes. Given that defence counsel in rape trials frequently claim the rape complainant consented to sexual intercourse - despite her denials - the Ministry recommended that New Zealand law follow overseas jurisdictions by providing positive guidance to juries about what constitutes consent. That is, consent is a voluntary choice made by a party who has the freedom and capacity to make that choice. When determining this issue, the jury should have regard to all the circumstances, including any steps the accused took to ascertain whether the complainant was consenting.

This proposal that law should require men to take steps to discover the actual wishes of their intended sex partners appears unobjectionable. However, following its unanimous rejection by the Panel, Mora sought and received confirmation from Warren Brookbanks, a legal scholar that the Ministry was trying to enact 'bad law'. Brookbanks contended that rape law reform in 1985 had already addressed the issue of consent. So 'throwing more law' at the issue was a mistake. Rather than law reform, the focus should be on young New Zealanders' 'boorish and insensitive' sexual behaviour. Although the word rape connotes violence, 'boorish' behaviour implies merely a lack of good manners. Griffin agreed that the issue was one of changing the cultural 'mindset'. Young women particularly should have 'a big, big emblazoned message to them every time they go out' to keep themselves safe. This construction of rape casts men as strong and natural sexual aggressors and women as obliged to guard against their behaviour. Focusing on the rape victim is also central to rape mythology: 'women precipitate rape by their appearance and behaviour [the 'she asked for it' myth]' (McDonald, Her Sexuality as Indicative of His Innocence: The Operation of New Zealand's 'Rape Shield' Provision, 323).

Since rape law views the crime from the perspective of the alleged rapist, the burden is on the prosecution to prove the accused had no reasonable belief that the complainant consented. If the jury cannot decide beyond reasonable doubt, the defendant walks from court a free man. The woman who did not consent is no less raped. However, since her autonomy and freedom is not placed at the centre of the inquiry, it is not her experience that counts. Prior to 1985, the male (for it is invariably a male who is charged with rape) was not even required to show his belief in the woman's consent was reasonable. So an unreasonable belief - one that no ordinary or reasonable person would have held - could secure the offender's acquittal! Supporters of this test of 'unreasonable belief in the woman's consent' such as Glanville Williams, a leading English legal academic, argued that it was unjust to convict the 'stupid man' of rape as except in cases of minor offences, people ought not to be punished for 'inadvertent negligence' (London Times, 8 May 1975).

Brookbanks and his co-author in Principles of Criminal Law appear to have some sympathy with Williams' argument. They suggest that the demand for a reasonable belief in consent should take into account special characteristics of offenders. For example, an offender whose 'youth and inexperience in sexual matters and in interpreting such subtle indicia as consent, might mean that he is more likely to make a mistake that would not be made by an adult' (pages 637-638). This proposition that women's consent to sexual intercourse is such a 'subtle' and ambiguous concept that young men cannot be expected to tell the difference between 'yes' and 'no' is dangerous and deeply offensive. Although it accords with a notion of date/acquaintance rape as 'boorish' or 'insensitive', the crime is no less violent and traumatising for the victim simply because the rapist was sexually inexperienced.

Male legal academics have long portrayed women's consent to sexual intercourse as a 'subtle' concept that is difficult for men to grasp - women often say 'no' when they really mean 'yes'! Moreover, while Griffin expressed his 'bemusement' at the statement by a victim's advocate that many in society believe vindictive women falsely accuse men of rape, and Brookbanks also claimed to be mystified by the comment, assumptions that women are prone to make false allegations of rape have long been enshrined in legal writings:

Glanville Williams tells us - in a manner reminiscent of Freud - that women do not really know what they want, which, by implication is why it is up to men to tell them. For Williams, a woman's consent to sex is 'a hazy concept' and the intentions of women are vacillating, ill-defined and unreliable. This is why women are likely to fabricate stories of rape when really they have only been getting what they desire. Women are odd, they have 'obscure psychological reasons' for behaving as they do. (Naffine, Possession: Erotic Love in the Law of Rape 28, citing Williams, Textbook of Criminal Law 2nd ed, 1983).

Up until 1985, assumptions that women lie about rape meant judges in sexual assault cases were required to warn juries of the danger of convicting the accused on the uncorroborated word of the complainant. The Australian High Court has confirmed the rationale for regarding sexual assault complainants as a suspect class of witnesses was 'that women are not to be trusted, that they make unreliable witnesses, and that the jury needs to receive a warning to that effect' (Naffine, above, 29) Although the requirement for corroboration was abolished in 1985, judges retain a discretion to warn the jury in appropriate cases. In Australia, there is evidence that judges continue to issue the warning despite similar legislation and contrary advice from the High Court (Heath and Naffine, Men's Needs and Women's Desires: Feminist Dilemmas about Rape Law Reform, 42).

The belief that women lie about rape also resulted in grilling the rape complainant about her past sexual history. The misogynist assumption was that the complainant was the type of woman who would consent to sex with another man; so she was likely to have also consented to sex with the defendant. Her sexual history was also used to cast doubt on her credibility: the unchaste woman is not a truthful person. As John Henry Wigmore explained, she makes up stories of sexual assaults in which she is the heroine, or victim:

On the surface, the narration is straightforward and convincing. The real victim, however, too often in such cases is the innocent man; for the respect and sympathy naturally felt by any tribunal for a wronged female helps to give easy credit to such a plausible tale.
(Kinports, Evidence Engendered, 437, citing Wignore, Evidence, 736, rev. ed. 1970)

Although the belief that women are prone to false accusations of rape has long underpinned criminal law and rules of evidence, in fact, statistics show just the opposite. Rape is one of the most under-reported crimes. Furthermore, there is no other category of crime which is subject to such intense scrutiny by police and prosecutors prior to taking the case to trial. Indeed, when considering the pressure involved and courage required to pursue a prosecution, the reasons for declining to contact the police far exceed those for false reporting.

Women's activism led to rape law reform in 1985 which rendered the complainant's sexual history with a person other than the accused inadmissible except by leave of the judge. However, almost a decade later, legal commentary indicated that courts were still allowing evidence of the woman's sexual history to be admitted in ways which reaffirmed rape myths (McDonald, above). In its Discussion Paper, the Ministry of Justice recommends extending the rule which prohibits routine questioning of rape complainants about their past sexual history to include the complainant's history with the defendant. On the Panel, Brookbanks expressed his opposition to this proposal, describing it as a denial of the defendant's fundamental right to confront his accuser - especially where the rape complaint arises from an existing intimate relationship.

However, as feminists point out, rape law could, without violating fundamental ideas of justice, require the reasonableness of the accused's belief to depend on the interaction between the two participants at the time of the act in question. Given that women's bodily integrity and sexual autonomy depend on a requirement of consent for every act of sexual intercourse, the assumption that the complainant's prior sexual activity with the accused is relevant to whether or not she consented on the occasion in question actually amounts to a denial of the complainant's fundamental human rights. Until quite recently, law and legal academics refused to accept that married women could be raped by their husbands. In the words of Lord Hale, a husband 'cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract'. Thus a married woman had no legal right to refuse. To suggest that past sexual history is relevant in cases involving an intimate relationship 'creates the same presumption of permanent consent that has been soundly criticized in marital rape cases' (Kinports, above p 439).

A disturbing feature of law's failure to provide a positive definition of consent is the degree of force that may be used by the male to gain the woman's consent. Although law presently states that a person who submits to sexual intercourse because of actual or threatened use of force or fear of force does not consent, judges have held that consent will not be negated by 'rougher than usual handling'. Although Brookbanks and his co-author in (Principles of Criminal Law, page 628) note this approach is only applicable in the context of a marriage or similar relationship, the view that it is acceptable to secure a wife's consent by subjecting her to 'rougher than usual handling' has been condemned in the Australian context. (Heath & Naffine, above p 37) In the US, judges have also differed over whether 'lightly' choking the complainant is an act of force, or merely a 'heavy caress'.
Thus the authors of Principles of Criminal Law, suggest that 'the parameters of (im)permissible force are not clear' (page 628).

The New Zealand case of R v W [1996] 1 NZLR 147 chillingly illustrates how the law of rape enshrines an aggressive, sexually predatory image of masculinity. In W, the offender served a term of imprisonment for an assault on a woman involving use of a firearm. Some time later the offender went to the same woman's home armed with a knife and insulating tape. He was let into her house by the woman's flatmate. After threatening the flatmate with a knife, the offender forced him to crawl to his bedroom, where he was bound, gagged and tied to the bed. When the woman arrived home, she was confronted by the knife-wielding offender. The head note to this case states that:

[the woman] screamed and suffered what a pathologist described as defensive knife wounds to her arms after which she was dragged or forced into her bedroom where [the offender] cut off her jeans and underclothing. There was a discussion about her relationship with another man, and consensual intercourse took place.

Later, the flatmate heard [the victim] scream loudly again…The flatmate eventually managed to free himself, escaped the house and rang the police who, on arrival, found [the victim] with her throat cut and dead.

Where is the woman who would concede the possibility of free and voluntary consent to sexual intercourse in the above terrifying circumstances? Furthermore, if after being stabbed by the offender, and having her jeans and underclothes cut from her body with the knife, the woman in this case had agreed to sell her car, or other property, no court in the land would uphold a contract negotiated under such conditions. So why is consent to sexual intercourse such an emaciated concept in criminal law?

A major aim of the 1985 reforms was to enhance women's control over their own bodies. However, as Naffine points out, rape law reform is always on the back foot as the sexual relation implicit in law - that of a man who sets the terms and proposes intercourse to a woman, who consents or not to his proposal - remains unchanged. Men are cast as the initiators, and never the negotiators of sexual acts. 'Never does he negotiate with a separate, different, distinctive being with her own set of desires.' By erasing women's subjectivity and sexual autonomy, modern rape law fails to ensure sexual equality for all (Possession: Erotic Love in the Law of Rape 33).

The Ministry's Discussion Paper is available on its website. The deadline for submissions is 30 September 2008 and the address is:

Sexual Violence Legislative Submission
Ministry of Justice
P O Box 180

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